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Operation of Regulation 35
Client won ESA appeal in June this year on basis of Reg.35(2)(b) - ‘certain claimants to be treated as having limited capability for work-related activity’ etc. Now has ESA50 to complete. Can I naively assume that if the ESA50 includes sufficient supporting evidence, and is copied to DM, then a medical can be avoided. Reg 35 does not specfify the need for a WCA, and DM can exercise their judgment under the ‘to be treated’ rule.
I’m asking as this is the first time I have had a support group client hit with an ESA50 (so far).
Thanks Tony, I will digest that, I thought my take on it was too simple!
I dont agree with Tony that acceptance of reg 29(2)(b) should lead automatically to placement in the support group. The risk is in relation to not having limited capabilty for work related activity, as against not having limited capability for work. It may be that the distinction turns out to be slight, but it is hard to assess because we have no real idea (or rather, I don’t have any real idea) what is going to be prescribed or directed as “work related activity”
I have had appeals allowed on 29 but not 35. we didnt ask for statement of reasons but my guess would be they would cite the slight difference between work and work related activity. no doubt stating that the agencies involved in work related activity would be specifically enabled to deal with disability etc etc
I think the changes from June have narrowed the difference between eg 29 and reg 35. By increasing the WRAG requirements they have increased the circumstances in which reg 35 will apply. For example I have a client who has ME and is on a work prep course thing. She is finding this is exhausting her ‘energy budget’ and over time causing deterioration in her condition. She is going to argue that this shows that reg 35 appies.
Funny thing about the work prep course - it is in a venue which is not dsability accessible!!
I think the changes from June have narrowed the difference between eg 29 and reg 35. By increasing the WRAG requirements they have increased the circumstances in which reg 35 will apply. For example I have a client who has ME and is on a work prep course thing. She is finding this is exhausting her ‘energy budget’ and over time causing deterioration in her condition. She is going to argue that this shows that reg 35 appies.
Funny thing about the work prep course - it is in a venue which is not dsability accessible!!
I think you are right Damian - as we find out more about what “work related activity ” entails, the gap between reg 29 and 35 may lessen. It is difficult for tribunals to assess reg 35 when JCP do not actually say what work related activity they have in mind.