WCA without medical certificates
I have a client who is currently working 16 hours per week. He would have a good case for passing the WCA, were he to undergo it. He also gets PIP.
If he were to undergo the WCA and were found to have LCW or LCWRA, he would get a work allowance in his UC calculation which is obviously beneficial for him; there would also be no limit to the number of hours he could work (see CPAG page 1008) whilst retaining his LCW/LCWRA status, and consequently his work allowance. Kind of like a badly-thought-through replacement for the disabled worker element of WTC.
His GP is reluctant to provide a sick note stating that he is capable of work, when he clearly is capable of some work - which is understandable I suppose. Does he need a sick note in order for the DWP to undertake a WCA? You are not treated as having LCW whilst you are waiting for a WCA under UC, so why the need for a sick note? His GP has provided him with a letter, stating that due to his disabilities he does have difficulties accessing and remaining in work, and there are various other bits of evidence that confirm that he has a disability which would impact on his employability.
Is there anything anywhere in the UC regs that says that you need a sick note in order for the DWP to undertake a WCA? Or can you just say ‘I have a disability which restricts my ability to work, here is some evidence to confirm it, please undertake a WCA’?
Any thoughts would be appreciated.
Social Security Medical Evidence Regulations 1976 as amended.
reg 2 ( 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….......by reason of some specific disease or bodily or mental disability”
1. There is no requirement that the claimant provides a Med3. And I suspect this is for the reasons you identify - under UC there is no ‘treated as’ provision whilst awaiting assessment. So they can simply ask to be assessed.
2. However, given UC numptiness, it may be easier to approach the GP and explain that the legal issue for the WCA is whether a person has limited capability for work and that this is accurately reflected in the Med3 form. There are two tick boxes - one to say the patient is not fit for work and the other to say “you may be fit for work taking account of the following advice”. And that advice might be as to the type of tasks which are suitable or unsuitable, whether specific adjustments need to be made and whether the number of hours worked should be limited.
So it is entirely possible for the GP to provide a Med3 where the claimant might be able to undertake some work.
The legislation simply refers to carrying out an assessment when “it falls to be determined ... whether a claimant has limited capability for work or for work and work-related activity”.
However, I think DWP would probably argue that it does not “fall to be determined” if it is simply asserted by the claimant that s/he has LCW/LCWRA.
This is reflected in the full-service guidance.
In particular (my emphasis):
[ Edited: 4 Apr 2019 at 01:28 pm by Charles ]
Claimants can self-certify for up to the first 7 days after they report being unfit for work due to a health condition or disability.
From day 8, if not already done so, the claimant is required to submit medical evidence, most commonly a Statement of Fitness for Work (SoFFW) – usually known as a fit note - from the claimant’s GP or other healthcare professional.
At day 29, providing the claimant has current medical evidence, he or she must, if not already done so, be referred for a Work Capability Assessment (WCA).
Whatever the guidance, which really concerns conditionality, I think “it falls to be determined” does includes the point at which the claimant indicates that they have limited capability for work. It is important not to confuse a concept of “limited capability for work” with being “unfit for work” - they are not the same.
I have this week advised our corporate appointee team to ask for work capability assessments on two clients who are working and in receipt of PIP - in one case certainly it is almost without doubt that they have limited capability for work, notwithstanding the fact that they are ““fit” to do the work they are doing. Without the WCA, they cannot possibly get the benefit of a work allowance, which is central to improving the level of UC for many working people with a disability. UC seem to have accepted that the process can start without Fit Notes/Med 3s (although this may be me being overly optimistic at this early stage).
I would press for a work capability assessment in the circumstances you describe, and escalate it if, for any reason, UC seem reluctant to start the necessary action without fit notes
For UC; reg 41(4), if someone is earning 16x NMW they cannot conduct a WCA unless it’s via one of the exemptions; hospital inpatient, exceptional risk etc.
I am just about to make a schedule 9 argument (nee reg 35(2) ESA) for someone who works 18 hours a week when they’re not in hospital. I expect a helluva scrap but I’m confident.
Receipt of PIP is an exception - see Reg. 41(2)(a).
Thanks for all the thoughts and opinions.
Just an update on this case, initially the DWP refused to do a WCA without a fit note, but then when I asked them to cite the regulations that require a fit note to be produced by the claimant in order for a WCA to be triggered, they accepted that they could in fact do a WCA without one and have now referred this gentleman for a WCA.
I think it’s important to have this issue on the radar as it’s essentially a replacement for WTC with the disability element - otherwise people whose ability to work is limited by a disability won’t get any recognition under UC.
i have a standard letter i send to working clients on uc requesting a cert just explaining they arent saying unfit to work but bla bla bla ....and this seems to work. havent had a gp refuse one yet.
id give that a go if you havent already.