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Statement of Fitness for Work
I know that a new claim for ESA can be MADE if the doctor ticks the box saying “may be fit for work” and the restrictions that would be necessary, but will ESA be paid in the assessment period or will a DM have to decide if the person is fit for some work and therefore not entitled at all? My client has a statement saying she may be fit for work with amended duties but has no job to go back to!
Client feels she cannot work at all. Suffers from multiple health problems including chronic fatigue, unstable thyroid condition and knee pain. She cannot do anything for a prolonged period or with “reasonable regularity”.
My client has a statement saying she may be fit for work with amended duties but has no job to go back to!
From first hand knowledge, ESA is still payable (at least in principle). “Amended duties” can mean pretty much anything. For example, someone with CFS may not be able to work on any particular day, but *may* be able to undertake work for, say, a couple of hours here and there. That kind of scenario does not preclude ESA. But, be forewarned, the inevitable medical is unlikely to be sympathetic to your client’s case and, in “invisible illness” cases. appeals are difficult to argue because, despite government statements to the contrary, the criteria for ESA DOESN’T necessarily reflect capability for work. It merely addresses a limited range of physical abilities, barely touches on any mental issues, which are then applied to descriptors that, to me at least, seem pretty arbitrary. Any relationship between the descriptors and capability for work are, in my view, merely coincidental.
Why not sign on if fit for some work?
That’s one possibility, but if the GP has issued a sick note why not claim ESA? It’s the same rate as JSA, is paid for a very considerable period (during appeals) with no requirement to sit in front of a judgemental personal adviser every fortnight to be treated like a second class citizen.
That’s a bit judgemental in itself isn’t it?
It’s a difficult thing to do, working at the jobcentre delivering government policy.
I have no doubt that clients are not jumping for joy and why would they when they’ve had to fit in to the legal regime to get paid their subsistence payment?
Even if the adviser is nice, they have a difficult job to do and a scheme to deliver that in reality will make no sense. i.e. apply for non-existent jobs etc.
As for the evil advisers…. I’m sure they were not recruited on the basis of their nasty person profile.
Like anywhere you may get a few people who are this and that. I doubt that all or most JC+ staff treat people like 2nd class citizens.
To get back to the original discussion, I tend to concur with Kevin’s view that, while a claim is possible, client is unlikely to get through the WCA. She has already lost one appeal and is unlikely to get through the next WCA, but given the time it takes for an appeal to go through I have advised a new claim for ESA (revolving door!) Just wondered if GP was likely to be asked for more info on the type of work she could do and the hours she could work before ESA is awarded, or if she will be ok up to the point of the WCA..
To get back to the OP question.
ESA in my experience will be paid.
Thanks to all for your contributions.
As far as I know, the information in the DWP consultation on sick notes still stands
http://www.dwp.gov.uk/docs/reforming-the-medical-statement-consultation-28may2009.pdf
para 34:
.. a statement which was issued as assessing an individual as ‘May be fit for some work now’ should be considered as constituting evidence that the patient should refrain from work for sick pay purposes.
para 45:
.. for the purposes of a claim for Employment and Support Allowance, a statement issued by a doctor assessing an individual as “may be fit for some work now” will be taken as evidence of limited capability for work for the purposes of the assessment period.
I judge DWP staffers based on their administration of the system. Barely a murmur of dissent from their ranks while they do their job.
[ Edited: 13 Jul 2011 at 05:28 pm by Ryan Bradshaw ]The doctor’s declaration on the MED 3 Fit Note is that the claimant has some limitation but could do some work (by reduced duties, adaptions, etc) and is completely consistent with a finding under the Limited Capability For Work Assessment which confirms an entitlement. ESA entitlement is based on assessing limitation rather than incapacity for work and there should be no problem in claiming ESA. Whether there is merit in the appeal is another thing altogether and ultimately will be determined by the Tribunal if you proceed with the appeal. The determining issue is whether the claimant fits the activity descriptors, or falls in to the exceptional circumstance category provided by regulation 29.
All IMHO ofcourse but that’s how I’d see it.
[ Edited: 18 Jul 2011 at 07:02 pm by Nickd ]