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New Claims for ESA - insisting first fit note less than 13 weeks
During the application of a few new claims which have been submitted under the legacy system (not full UC area yet), the call handler has insisted that the first fit note must be less than 13 weeks. In both cases the claimant had long term health conditions which would prevent them returning to work for a minimum of 6 months.
I cannot find anything in the regs that suggest this is the case. Could anyone verify if the DWP is right or wrong?
During the application of a few new claims which have been submitted under the legacy system (not full UC area yet), the call handler has insisted that the first fit note must be less than 13 weeks. In both cases the claimant had long term health conditions which would prevent them returning to work for a minimum of 6 months.
I cannot find anything in the regs that suggest this is the case. Could anyone verify if the DWP is right or wrong?
The official guidance for GPs is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/465918/fit-note-gps-guidance.pdf
On page 11 it says: “In the first six months of a patient’s condition, a fit note can cover a maximum of three months. If a condition has lasted longer than six months, a fit note can be for any clinically appropriate period up to ‘an indefinite period’.”
Yes - that’s the same bit of guidance I found, but it is only relating to the first fit note (and not necessarily the first fit note for a benefit claim). If the claimant had been supplying Fit notes to an employer for SSP, then it would follow that any fit notes issued by the GP for the same condition could be for longer than 13 weeks.
This is an artefact of the Social Security (Medical Evidence) Regulations 1976 (SI No. 615).
Para 12 of Schedule 1 is as follows and is under the heading “Rules”:
“12. The period specified shall begin on the date of the assessment on which the doctor’s statement is based and shall not exceed 3 months unless the patient has, on the adivce of a doctor, refrained from work for at least 6 months immediately preceding that date.”
The rules are directed at Doctors/Health Care professionals -those filling in the medical certificates.
If a Doctor gives medical certificate that breaks that rule, I am not certain that the DWP would be able to argue that it was not therefore what is needed under reg 30(2) of ESA Regs 2008 (SI No. 794).... ie “evidence of limited capability for work in accordance with the Medical Evidence Regulations”.
The DWP would in essence be saying as the Doctor had breached the rule it was not given in accordance with those Regulations….
Better position would be for them to ask for another once the 3 months were up and explain GP should only have given it for 3 months.
But at least having the paragraph above answers your questions…. issue is whether GP has advised for at least 6 months prior to the issue of the particular cert to refrain from work (so it may not just be the first cert the rule applies to and also it does not matter that the previous advice wasnt in relation to ESA). All goes to show that really the DWP should not be second guessing whether the Doctor complied with the rules….
Doctors often don’t follow the rules exactly - the main thing they do incorrectly is issuing backdated certificates - but I’ve never heard of the DWP refusing to accept one as evidence of incapacity.