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Best arguements for reg 35

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CDV Adviser
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My client has been moved from the SG to WRag. In considering reg 35, the decision maker has stated:

“There are different types of work-related activity that may be available to you. I have to consider what types of work-related activity from that list it is considered that you might reasonably be expected to undertake. An example of the least demanding type of work related activity could be getting up and dressed by a certain time each day, and keeping a log to chart progress. Having considered the activities you stated you are able to complete in a typical day and the other information provided at your medical assessment I consider the evidence suggests you would be able to complete this task without risk to your health or the health of anyone else and requesting you to do so would not be unreasonable.”

Since when was getting up and getting dressed, work-related activity? Using this as a yardstick, would anyone be able to meet the criteria for reg 35? If my client was permanently confined to a bed, would setting the alarm clock and waking up at the same time every day, mean he was capable of work-related activity?

Briefly he suffers from uncontrolled non-epileptic seizures including incontinence, hearing loss in both ears, depression, post-traumatic stress disorder, Oedema in legs, hypertension, dizziness and balance issues. He has serious anger issues and has assaulted people on numerous occasions. He suffers seizures several times a week and they come without warning.

Can anyone suggest best arguments for this to prevent me using expletives about the DWP when completing the submission.

Daphne
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That is terrible! I think CE/4887/2014 is saying that the DWP are supposed to be providing not just the least onerous tasks that a claimant might have to carry out but also the most onerous and that the decision should be based on the claimant’s ability to do both.

Are any other types of work-related activity mentioned? Can you look at his ability to do them? It shouldn’t just be based on one very basic one. Some surely should involve interacting with others which could put him at risk. Given his disabilites maybe even getting up at a certain time might put him at risk if he might have a seizure?

[ Edited: 14 Feb 2019 at 03:24 pm by Daphne ]
Bonnie
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I would look again at the criteria for the Support Group; focusing on Incontinence, and Appropriateness of behaviour. You can also ask then to consider Reg 35 if they found these descriptors don’t apply to the client.

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Daphne - 14 February 2019 03:20 PM

Are any other types of work-related activity mentioned?

No Daphne, that’s the only one.

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Bonnie - 14 February 2019 03:34 PM

I would look again at the criteria for the Support Group; focusing on Incontinence, and Appropriateness of behaviour. You can also ask then to consider Reg 35 if they found these descriptors don’t apply to the client.

Incontinence only occurs during seizures and therefore when he is not in a conscious state, so that activity is doubtful.  I will definitely be asking them to look at appropriateness of behavior as he poses a very serious risk to others.

Daphne
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Phil R - 14 February 2019 03:48 PM

No Daphne, that’s the only one.

I agree with everything Bonnie has said but also in the challenge I would refer to that decision and request a more complete list - see paragraph 106 in the decision -

In my judgment the lists provided to the First-tier Tribunal need not only to contain but also identify the most and least demanding work-related activity available at the relevant time in the claimant’s area. This applies as much to the Jobcentre Plus Offer list as it does to the external work provider list. Just as importantly, the list and the identification within it has to come before any submission about what a claimant might be required to undertake and that which the Secretary of State considers it would be reasonable for the work coach or external provider to require that claimant to undertake.

past caring
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I have a case at the UT on this point at present - i.e. DWP’s providing only the list of least demanding activity to the tribunal and consequent non-compliance with IM. At the risk of being previous, it will be allowed - I’ve had permission some months back and the UT’s subsequent directions to the DWP and the DWP’s throwing in the towel make it clear this is eventually only going to go one way.

If anyone wants/needs the subs I am using at FtT on this point in the interim, I can provide them, though they are comprehensive (!). Not in the office again until next week though, so any requests will have to wait until then.

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past caring - 14 February 2019 05:58 PM

I have a case at the UT on this point at present - i.e. DWP’s providing only the list of least demanding activity to the tribunal and consequent non-compliance with IM. At the risk of being previous, it will be allowed - I’ve had permission some months back and the UT’s subsequent directions to the DWP and the DWP’s throwing in the towel make it clear this is eventually only going to go one way.

If anyone wants/needs the subs I am using at FtT on this point in the interim, I can provide them, though they are comprehensive (!). Not in the office again until next week though, so any requests will have to wait until then.

That would be really helpful, thank you. I’ll message you my email address.

Pete at CAB
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It might be worth citing Para (7) of s. 13 WRA 2007 which describes work related activity as ‘an activity which makes it more likely that a person will obtain or or remain in work or be able to do so’.

It might be argued that in the current case the proposed activity is not likely to achieve anything set out in Para (7) so it should be discounted.  It therefore follows that the fact that the cl might be able to the activity without harm is neither here nor there when it comes to assessing risks under Reg 35.

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Pete at CAB - 15 February 2019 04:32 PM

It might be worth citing Para (7) of s. 13 WRA 2007 which describes work related activity as ‘an activity which makes it more likely that a person will obtain or or remain in work or be able to do so’.

It might be argued that in the current case the proposed activity is not likely to achieve anything set out in Para (7) so it should be discounted.  It therefore follows that the fact that the cl might be able to the activity without harm is neither here nor there when it comes to assessing risks under Reg 35.

That is a very good point Pete.

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Pete at CAB - 15 February 2019 04:32 PM

It might be worth citing Para (7) of s. 13 WRA 2007 which describes work related activity as ‘an activity which makes it more likely that a person will obtain or or remain in work or be able to do so’.

It might be argued that in the current case the proposed activity is not likely to achieve anything set out in Para (7) so it should be discounted.  It therefore follows that the fact that the cl might be able to the activity without harm is neither here nor there when it comes to assessing risks under Reg 35.

Thanks Pete, that’s a good argument.

Vonny
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At a recent tribunal (I had submitted the full list from the dwp memo as attached), the Judge asked the PO why the list in the dwp submission was different to the list I had submitted (the dwp one being exactly the same list of least demanding, but with the most demanding side missing as is commonplace) and the PO said that the one in their sub was an old list! 

client placed in support group on schedule 3 descriptor.

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ClairemHodgson
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just bizarre that some of those could be said to be work related activity (the getting up etc; leaving the house (especially for those who can’t); etc….

Elliot Kent
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Perhaps a related question - when your clients are found to have LCW but not LCWRA (i.e. being in the WRAG in old money), what - in reality - are they being asked or required to do?

MKM35
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Elliot Kent - 18 February 2019 03:19 PM

Perhaps a related question - when your clients are found to have LCW but not LCWRA (i.e. being in the WRAG in old money), what - in reality - are they being asked or required to do?

See attached

Apparently I can’t upload pngs or jpegs anymore? Have emailed

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Apologies to those who messaged me and asked for a copy of my subs dealing with the reg. 35(2) point - I’ve been tied up with other stuff. I’ve attached a copy to this post - the reg. 35(2) stuff is at the end - the appendices (DMG 1/18, ADM 2/18 and KC and MC v SSWP (ESA) [2017] UKUT 0094 (AAC)) referred to are available via a Google search. I think I’ve anonymised everything - please let me know if I’ve missed anything.

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