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

UC claim with no fit note for 14 months

BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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I have picked up a claimant who was on UC for 14 months without putting in a fit note. He had a fairly limited claimant commitment but it required him to do “everything that I can to find work or earn more.” He has Downs Syndrome with moderate Learning Disabilities, he has an appointee and requires a PA for many aspects of personal care, etc. He gets PIP at Enhanced Rate of both components.  In my judgement, it is quite obvious to anyone who meets him that he is likely to pass a WCA.

Eventually someone at the Jobcentre advised his appointee to submit a fitnote and that triggered a WCA which resulted in LCW&WRA;. However, this leaves 18 months of his claim where no LCW&WRA; element was included.

What chance of getting this money paid now? And what would be the best way of going about getting it?

Thanks.

Catblack
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Benefits specialist - South Somerset District Council

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This happened to one of my clients and we argued the toss with the VCL at the jobcentre - basically said as hhe was learning disabled he ad little insight and any work coach should be able to spot right away that he had LD. We were successful in getting the LCWRA backdated to thhe start of his UC claim (after the waiting period).

Va1der
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At the outset this sounds like official error by DWP.

If you’ve just picked up the case from someone else a SAR to DWP might be useful in clarifying the case progress (or the journal might provide enough info).

I would question at what stage DWP has failed to carry out some fairly basic duties. Were details of his health conditions submitted to DWP, even if a fit note was not?
What were the exact implications of his claimant commitment - has he been called in for appts at JCP, had phone conversations with a WC etc?

 

Catblack
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The JC said a fit note is “always” required to begin the WCA process. In my client’s case the GP wrote him a fit note that said “Dear DWP, if you want to assess this man’s capability for work, get an Occupational health assessment”

I did a grovelly email that went something like this:

“This is a tough one! Morally he is not fit for work but we need to fit in with the regs and help this man as best we can!

It’s worth having a look at reg 99 (5) (c) - my interpretation of this is that the SoS cannot impose a work search requirement where it would be unreasonable to do so because the claimant is unfit for work and where requested by the SoS provides a medical certificate. i.e. the med cert is only required if the SoS requests it. In this case, Mr X attempted to get a Med3 but his GP did not cooperate and did not give details of his learning disability as this isn’t a “sickness” that he is treated for.

This does not appear to be mandatory and if the SoS deems it unreasonable to comply because of an unfitness to work which the evidence supports (self-certificated or otherwise), I would argue that the Med3 is not “compulsory”.

So for example if the claimant were to present themselves at the JC+ with an obviously identifiable issue, this may evidence an unfitness for work without a Med3. 

This can be read alongside reg 43, which does not specify a Med3, merely the generic such info as they may request.  So self-certification should be acceptable.

Unfortunately, as he is learning disabled with no support in place, X has little insight into his own issues and would not report this to his work coach.

I attended his appointment at the jobcentre with him in September after he approached us and help him communicate his needs. Under EA10 the DWP is required to make reasonable adjustment but this is hard when you aren’t aware of the issue and the person in question has a disability that stops him from communicating this to the relevant parties involved.

Given the help that Mr X has needed throughout this process and the difficulties he has faced I do find it hard to understand why not one person he has interacted with in respect to his benefits picked up that he has a learning disability.

It’s a shame he has been so let down by the system.”

That was the email that did the trick!

AlexJ
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Trafford Welfare Rights

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If you have a look at reg. 41 of the UC regulations, ‘when an assessment may be carried out’, there is no reference to a requirement for a sicknote. Which may help with the argument that the DWP should have referred for a WCA when it became obvious that the claimant had a substantial disability (ie. from day one of his claim) - there is nothing in the regs obliging them to be in possession of a sicknote in order to trigger a WCA.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 do seem to create a requirement for a statement from a doctor, or if this is unreasonable, ‘such other evidence as may be sufficient to show that they are incapable of work’, when awaiting an assessment for a WCA. You could try getting a backdated sicknote from the GP (despite what most GPs think, they can provide backdated sicknotes), or failing that, some evidence that would satisfy paragraph 1A below (like a letter confirming the client’s condition, which was obviously present from birth). 

“2.—(1) Subject to regulation 5 and paragraph (1A) below, where a person claims to be entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay) and entitlement to that benefit, allowance or advantage depends on that person being incapable of work or having limited capability for work, then in respect of each day until that person has been assessed for the purposes of the personal capability assessment or the limited capability for work assessment they shall provide evidence of such incapacity or limited capability by means of a statement given by a doctor in accordance with the rules set out in Part 1 of Schedule 1 to these Regulations.
(1A) Where it would be unreasonable to require a person to provide a statement in accordance with paragraph (1) above that person shall provide such other evidence as may be sufficient to show that they are incapable of work or have limited capability for work so that they should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disability.”.

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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Reg 28 tells us that the 3 months with no LCWRAE starts when they first receive evidence of that LCWRA.

I’d argue that that was his first appointment; seeking recon of the decision only to award from whenever they awarded it from. I’m just about to have a similar battle; LCWRAE payable from the first day possible after the claimant’s partner said “they’ve been sectioned” rather than 12 months later when I persuaded them to get a med3.

[ Edited: 12 Sep 2019 at 11:56 am by Dan_Manville ]
BC Welfare Rights
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The Brunswick Centre, Kirklees & Calderdale

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Thanks everyone. I will try a late MR on the payment date and simultaneous complaint and see where we get.

Zeyneb Duman
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Welfare Benefits Adviser, Notting Hill Genesis

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Just wondered if you had success with this?

I have a really similar case at the moment and UC case manager is refusing to even accept an MR (so that the decision is looked about by a decision maker) , telling the claimant that they need to contact their MP as it is the policy they disagree with!

Va1der
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Another (somewhat) similar case: Client claimed UC in June 2019. Says she’s been submitting fit notes continuously at JCP, but hasn’t reported them in online account. No record of them in her journal.
Only commitment has been monthly calls with a WC.

Made a note in her journal to see if they have any record of the fit notes, and why she hasn’t been called for WCA. (She had been on ESA for years until that stopped after a WCA last year).