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

requirement for a med3

Dan Manville
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Mental health & welfare rights service - Wolverhampton City Council

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Hi gang

Our local JCP are telling me that; for UC, they can’t trigger a WCA without a med3. I can’t find statutory provision requiring one other than the general power to demand information at reg 43 UC regs which would appear to be drafted under S37 WRA 2012..

I have someone with no insight and no GP who is teetering on the edge of a UC claim; I may well need to lean on JCP to determine the WCA without ever meeting the claimant.

Am I right that there’s no specific requirement?

Under ESA you could self declare but that seems absent in the UC regime…

[ Edited: 10 Jan 2019 at 12:34 pm by Dan Manville ]
Jeremy Barker
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Citizens Advice North Lincolnshire

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With ESA there was a presumption that you were incapable of work until the WCA was completed and after the first 7 days (when there’s no right to have a MED3) payment was conditional on providing a MED3. Your claim could be closed if you didn’t provide a MED3.

UC is different because this presumption doesn’t exist. While there’s no explicit requirement to provide a MED3, when you look at how the overall system works it’s implicit that the circumstances in which a WCA would be appropriate can only exist if MED3 certificates are provided. Unfortunately some stuff appears to be implicit rather than explicit. In particular there’s nothing I can find which explicitly states circumstances in which a WCA must be done. The following points lead one to this conclusion:

Except for the first 7 days of incapacity they assume a person is capable of working if no MED3 is provided and they will have to meet all the work-related requirements (unless they are exempt for some other reason). When a MED3 is provided there’s a discretion not to apply the work-related requirements and that is normally when the claimant will be put in the WCA process.

The regulation on when the LCWRA or LCW (now abolished for new claims) element is payable (reg. 28) states that it is only payable after a period of 3 months starting with “the first day on which the claimant provides evidence of their having limited capability for work [incapacity] in accordance with the Medical Evidence Regulations” - i.e. by supplying a MED3 after the first 7 days. While the regulations doesn’t explicitly say that evidence of incapacity must be ongoing for the 3 month period it is very unlikely that the claimant would be found to have LCW/LCWRA if it didn’t.

The regulations say that WCA may be carried out where “it falls to be determined for the first time whether a claimant has limited capability for work or for work and work-related activity”. It is implicit that needs to be done when it appears that the claimant might have LCW/LCWRA.

Chrissum
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WRAMAS, Bristol City Council

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Not sure if this answers your query but is it 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. 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+ in the style of Edmund Blackadder with pants on their head, pencils up their nose and shouting “wibble”, this may evidence an unfitness for work without a Med3.  This can be read alongside reg 43, which as you state does not specify a Med3, merely the generic such info as they may request.  So self certification should be acceptable… of course I say “should” as the go to evidence of initial fitness to work is the Med3 and medical evidence. In your circs might be worth the, as you suggest, “lean”.
Hope this helps rather than hinders.

Chrissum
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of course my respose doesn’t get you that LCW/LCWRA decision, but it may trigger an assessment…

Catblack
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Benefits specialist - South Somerset District Council

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I managed to successfully trigger a WCA for a client with an uncooperative GP but that was ESA.

The man in question had some physical issues but mainly due to being learning disabled with little insight into his own needs.

The GP wrote on his fit note “Dear DWP, if you want to know what work this man can and cannot do, go and see an occupational therapist”.

Actually the local Jobcentre were really good and triggered his WCA internally without the need for a med3.

we also managed to get some really good evidence for LCW/WRA from the MR for the sanction that we overturned which stated how vulnerable he was. Just got to hope for a sensible decision now!

ClairemHodgson
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Solicitor, SC Law, Harrow

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Catblack - 17 January 2019 03:53 PM

The GP wrote on his fit note “Dear DWP, if you want to know what work this man can and cannot do, go and see an occupational therapist”.

 

i like that; and frankly, much more sensible than the GP trying to pontificate outside his/her area of expertise…

Catblack
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Benefits specialist - South Somerset District Council

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Yes I was outraged and appreciative all at the same time.