LCWRA and terminal illness

under normal circumstances my client would be awarded without a problem but the medical professionals who said condition was terminal will not issue DS1500 (no idea why) when they said he had 3 years to go and that was 2 and half years ago. Any suggestions. First time application for ESA

If they expect him to live another two and a half years they are not in a position to issue a DS1500.

For the purpose of benefits, someone is considered terminally ill if they have a progressive disease and the person’s death in consequence of that disease can reasonably be expected within 6 months.

See https://www.gov.uk/government/publications/dwp-factual-medical-reports-guidance-for-healthcare-professionals/dwp-medical-factual-reports-a-guide-to-completion
DWP Medical (factual) reports: A guide to completion
The phrasing used here is:
“The purpose of the DS1500 is to tell DWP about a patient who meets the special rules criteria. It is not used to make a claim for benefit.

You should complete the form promptly if you believe that your patient meets the special rules criteria, namely:
they have a progressive disease and, as a consequence of that disease you would not be surprised if your patient were to die within 6 months”

This more recent phrasing “would not be surprised if” is more favourable to claimant than “death can reasonably be expected”. However, in your case, it may be that the medical team would be surprised if death occurred within six months, in that case they are not able to issue the DS1500.

The fact you are talking about ESA indicates an SDP is in payment. Was PIP / DLA awarded under the special rules? If so that DS1500 should be accepted (though from previous experience ESA took a lot of persuading that this was the case as they usually insisted on a new form), depending on how old it was of course. Failing that, try an alternative source for the DS1500 such as the GP, CNS or specialist. Everyone has an opinion and as Ianb has pointed out it is a “would not be surprised if” test. Having said as he also points out if they don’t have that belief they will not / should not sign the form. Remember just having a terminal illness does not mean you automatically get a DS1500 issued (though as I understand it if they live in Scotland this is different).

Medics find it very hard to estimate times and you may have run up against a change in opinion that has happened over the 2+ year period.  Sometimes a patient will react better to palliative treatment than expected so though they may have thought progression would take 3 years at the time of diagnosis, they look at how the patient is now and think the progression has been slower than expected, they could manage another 2 years.  This might be why they are not willing to give you a DS1500 right now.

There are also some clients who have serial DS1500s where progression is slower but at the point the PIP/AA/DLA special rules award expires the medical staff think they can’t manage more than another 6 months so they give you another DS1500.  I have had 3 given for one client successively on this basis but this is rare.

If they are actually saying a DS1500 isn’t appropriate, make a standard claim with a sick line and argue about the special rules bit later as it’s easy to get benefit increased quickly once the claim is up and running.

My reading of the recent debate about the special rules; in light of Scotland easing the threshold, would suggest that medics find it much more difficult to offer a prognosis so close as 6 months due to more effective palliative care than was available in 1990 when Parliament magicked the 6 month threshold into place. It’s getting much more difficult to predict when someone might leave us.