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

“Closing the health journey when a fit note has expired” - does anyone have this guidance?

JPCHC
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We are working with a lot of refugees who have just got status.  As you know those first few weeks and months are chaotic, as they’re moved out of Home Office accommodation (in Westminster, hotels) and placed in Temporary Accommodation, often out of the borough meaning they may need to register with a new GP etc.

The result is I am seeing lots of cases where they’ve closed the WCA referral because of the gap in the MED3s.  I was reading the latest UC guidance on WCA and it says to look at “closing the health journey when a fit note has expired.”  I can’t see that it’s in the public domain, but if it is please can someone share it?  I’ll do an FOI request too.

I saw on an earlier post the view that it wasn’t an appealable decision but as it’s being given with a “if you disagree with this decision”, I am requesting MRs anyway… Although for the last one I did, I got a WSoR rather than an MR.

Kelly
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JPCHC - 29 April 2024 09:48 AM

...I was reading the latest UC guidance on WCA and it says to look at “closing the health journey when a fit note has expired.”  I can’t see that it’s in the public domain, but if it is please can someone share it?  I’ll do an FOI request too.

Are you referring to this UC guidance? Work Capability Assessments v.24
It’s a deposited paper on the parliamentary website so it is in the public domain. The relevant section is a few pages down under ‘Withdrawal from the Work Capability Assessment process’

JPCHC
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Yes, this is the guidance I was looking at.  On page 5, it says - “See: closing the health journey when a fit note has expired”.  Unless I’m missing it, this section is not in the same guidance.  I presume there must be another document that details the new process whereby they close the WCA referral (sorry - “end the health journey”!) after a 21 day gap in the sick notes.  That’s what I was after. Thanks

nevip
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AlexJ
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JPCHC - 29 April 2024 09:48 AM

We are working with a lot of refugees who have just got status.  As you know those first few weeks and months are chaotic, as they’re moved out of Home Office accommodation (in Westminster, hotels) and placed in Temporary Accommodation, often out of the borough meaning they may need to register with a new GP etc.

The result is I am seeing lots of cases where they’ve closed the WCA referral because of the gap in the MED3s.  I was reading the latest UC guidance on WCA and it says to look at “closing the health journey when a fit note has expired.”  I can’t see that it’s in the public domain, but if it is please can someone share it?  I’ll do an FOI request too.

I saw on an earlier post the view that it wasn’t an appealable decision but as it’s being given with a “if you disagree with this decision”, I am requesting MRs anyway… Although for the last one I did, I got a WSoR rather than an MR.

I can’t see any reason why this isn’t an MR-able/appealable decision. The relevant provisions they are relying on are, if I’m not mistaken, in regulation 43 of the UC regulations. The requirement to provide a sicknote I think falls under 43(1)(b): ‘any additional information that may be requested by the Secretary of State [required to determine whether a claimant has limited capability for work or for work and work-related activity]’. There is a ‘good reason’ exemption from this requirement under para 3 and I can’t see why you couldn’t MR and then appeal any negative decisions, arguing ‘good reason’ based on your clients’ individual circumstances (health conditions, language barrier, chaotic circs having just settled in UK, social security system completely alien to them etc. etc.).

It’s also worth checking that the DWP have complied with their requirement under para 4 about sending a further request for the evidence and then waiting for a response.

https://www.legislation.gov.uk/uksi/2013/376/regulation/43

Gareth Morgan
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Kelly
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I see you submitted an FOI request, linked here in case others want to keep an eye on it too: https://www.whatdotheyknow.com/request/work_capability_assessments_clos

I’ll keep trawling deposited papers for the ending health journey guidance when I get a chance but suspect it would’ve been picked up already if it had been released before now…

Can’t advise re reg 43 challenge without further consideration - this isn’t something I’ve come across before. Far more common for health journeys to be ended due to failure to attend assessments, or health journey to proceed despite lack of fitnotes then argue about how far LCWRA element backdated as a result of gaps…

Elliot Kent
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The requirement for fit notes has an independent existence at reg 2 Social Security (Medical Evidence) Regulations 1976, so the DWP would say that they are relying on that rather than reg 43 UC Regs.

The basis for the argument that ‘ending the health journey’ in this way not being an appealable decision would be the idea that it is not an ‘outcome decision’ under ss. 8 or 10 SSA 1998, so doesn’t engage the right of appeal under s.12 - the point being that refusing to exercise the power under reg 41 to carry out a WCA doesn’t of itself have any impact on the client’s ‘pounds in the pocket’ entitlement.

nevip
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Kelly - 30 April 2024 04:22 PM

I see you submitted an FOI request, linked here in case others want to keep an eye on it too: https://www.whatdotheyknow.com/request/work_capability_assessments_clos

I’ll keep trawling deposited papers for the ending health journey guidance when I get a chance but suspect it would’ve been picked up already if it had been released before now…

Can’t advise re reg 43 challenge without further consideration - this isn’t something I’ve come across before. Far more common for health journeys to be ended due to failure to attend assessments, or health journey to proceed despite lack of fitnotes then argue about how far LCWRA element backdated as a result of gaps…

I trawled the Parliament.uk website and couldn’t find anything more than what’s already been highlighted. I suspect that it’s yet to be published.

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Elliot Kent - 30 April 2024 08:34 PM

The requirement for fit notes has an independent existence at reg 2 Social Security (Medical Evidence) Regulations 1976, so the DWP would say that they are relying on that rather than reg 43 UC Regs.

The basis for the argument that ‘ending the health journey’ in this way not being an appealable decision would be the idea that it is not an ‘outcome decision’ under ss. 8 or 10 SSA 1998, so doesn’t engage the right of appeal under s.12 - the point being that refusing to exercise the power under reg 41 to carry out a WCA doesn’t of itself have any impact on the client’s ‘pounds in the pocket’ entitlement.

Thanks Elliot - pleased someone who knows their way around ss. 8 and 10 had an answer on this. Didn’t strike me as an appealable decision so it’s helpful to have this confirmed.

May be worth complaint and/or JR but ideally would want to see that missing guidance first…

JPCHC
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The DWP have responded to my FOI request and published the guidance here:
https://www.whatdotheyknow.com/request/work_capability_assessments_clos?nocache=incoming-2655843#incoming-2655843

SarahBatty
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Would others agree then that the remedy for this situation is to request re-referral for the WCA (‘health journey’) upon production of a new fit note?

And in some cases complain about the closure of that referral if the client did in fact have reasons or has alerted them previously to complex needs.

And then after a determination of LCW or LCWRA is finally made, dispute the effective date of this decision.

Because although that guidance says you are ‘treated as capable’ this is not a determination under any regulation, its just in this context an informal phrase meaning we’re no longer in the process of assessing whether or not you are capable.

Mr Finch
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Not to state the obvious but there is no such thing as a ‘health journey’.

Regulation 41 only makes sense if the ‘“may”’ carry out an assessment’ is understood to mean that as well as needing to carry one out the first time in (a) the SoS also has unfettered power to carry out further re-assessments in (b). The question of LCW in the primary legislation ‘is to be determined’ under section 37. If the ‘may’ were completely at the SoS’s discretion even on initial determinations, it could enable him to to avoid ever having to pay benefit claims by not assessing them.

As for the Medical Evidence Regulations, these seem to have taken on something of a mythical status over the years, but are secondary legislation so only have an existence where they prescribe something referred to in other properly made legislation. For LCW they define what is Medical Evidence. In ESA a claimant needs Medical Evidence to be treated as having LCW before assessment. Medical Evidence in UC is only referred to in regulations 8 (cases where the minimum age is 16), 28 (the date a LCWRA element is payable from) and 99 (temporary unfitness).

[ Edited: 17 May 2024 at 10:47 am by Mr Finch ]