DWP guide to benefits for GPs

http://www.dwp.gov.uk/docs/gp-benefit-guide.pdf

Bottom of page 4/top of page 5:

“Your patient may need Med3s if they are appealing a benefit decision and want to claim Employment and Support Allowance until their appeal is heard. As always you should only issue a Med3 if the patient has a health condition which impacts on their fitness for work. If you choose not to issue a Med3, your patient will in most cases be able to claim Jobseeker’s Allowance during the appeal. If the appeal is unsuccessful, you should only issue further Med3s if their condition worsens significantly or they have a new medical condition.”

So, a GP who has given Med3s during the assessment phase is being encouraged to change their mind based on a DWP decision not to award ESA. Oh, and we can now expect ESA appeals to be all done and dusted, including the hearing, within 6 months…

Hi Keith

That explains why a client phoned me yesterday sounding slightly distressed.  He’d scored 12 points at a tribunal a few weeks ago and I’d advised him at the time to re-apply for ESA, it having been more than 6 months since the WCA whose result the tribunal had upheld.  The problem, he said, was that his GP was now refusing to give him a new sick note because he did not have a new or worsened condition.

The DWP advice to GPs on issuing sicknotes after an unsuccessful appeal is completely wrong irrespective of whether the patient’s new ESA claim is within 6 months of their previous WCA.  The GP is not at all interested in whether his patient satisfies the ESA 6 months rule.  Instead he is bound by the Social Security (Medical Evidence) Regulations 1976, Rule 5 of Part 1 to Schedule 1 of which stipulates that a sicknote must contain, amongst other things, details of:

“(c) the condition in respect of which the doctor advises the patient they are not fit for work

“Condition” for these purposes is defined in the same schedule as “a specific disease or bodily or mental disability”.  Note, the absence of any requirement for a new or worsening condition. 

As we know, the sick note found at Part 2 of the above schedule has tick boxes for “you are not fit for work” or “you may be fit for work taking account of the following advice”.  Even if the GP ticks the latter, the sick note is still sufficient to allow the claimant to be treated as having limited capability for work pending a new WCA.  The only reason a GP should refuse to issue a sick note is that he feels his patient is fit for work (ie there is no “may” about it).  And that is all the DWP guidance to GPs really needs to say.

In my above client’s case, he luckily has a sicknote issued in respect of the ESA he was claiming pending the above appeal hearing.  That sick note runs out in a fortnight but it will buy us some breathing space to hopefully put the GP right.

Of course, under Reg 2 of the above Medical Evidence Regs it is not even necessary for the claimant to produce a sick note in order to satisfy Reg 30(2)(a) ESA Regs, ie in order to be treated as having limited capability for work pending a new WCA.  Reg 2 provides:

“2(1) Subject to… paragraph (1A) below, where a person claims
to be entitled to any benefit,…. and entitlement to that benefit…depends on that person…having limited capability for work, then in respect of each day until that person has been assessed for the purposes of …the limited capability for work assessment they shall provide evidence of such… limited capability by means of a statement given by a doctor in accordance with the rules set out in Part I 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. “

In R(IS) 4/04 Judge Mesher at para 32 accepted that even statements by a claimant personally may in some circumstances satisfy the test in the then equivalent of Reg 2(1A) above.  However, on the facts he found that the claimant’s statements in his IB claim form that he should refrain from work due to sickness were no more than assertions. 

Of course, it’s not just GPs who can issue sick notes.  In R(IS) 4/04 the claimant did have an old letter from a consultant which the SOS accepted, given its history, content and detail, was sufficient to satisfy the Medical Evidence Regulations.  So it may well be possible to infer from, eg a relatively recent consultant’s letter that a claimant should refrain from work for the purposes of Reg2(1A) above.  Irrespective of what the patient’s GP says and of the fact that the consultant’s letter “has been given in a context which does not directly involve advice either to refrain from work or not to refrain” (para 14 R(IS)4/04).  But it shouldn’t have to come to that really.

Reg 32A ESA Regs does allow a DM to deem someone as not having limited capability for work for failure to provide sick notes.  However, it would seem that all a claimant has to do to prevent such a decision is contact the DM and indicate that they wish to be assessed under the WCA.

Therein lies the problem. “it would seem that all a claimant has to do to prevent such a decision is contact the DM and indicate that they wish to be assessed under the WCA”
Even getting through to Jobcentre plus these days is getting harder. I know our local benefit delivery office is swamped after recent layoffs at JC+ (Sunderland clients claims are being now dealt with in Bradford!) I called ESA yesterday and wasnt even put on hold with the obligatory vivaldi music - it was engaged.

Yes, and Newcastle IS & JSA claims are being dealt with by Sunderland.  Now, I can think of a Monday morning twice a year when the soundness of that decision might be questioned.

I agree Tom . I work in Sunderland but travel from Newcastle to work every day (Gizza job!) They dont wanna talk about certain things down here at the moment for some reason. I am also helping a friend of mine in Newcastle with her appeal and her IB-ESA conversion is being dealt with by Stockton benefit delivery centre? Utter madness . Ps If you work with Annabel tell her Paul says hello!.

Will do Paul.  Take care.