Read it and weep!!

How’s this for submission from DWP in relation to WRAG of ESA:

“O/T states that client is not unwilling to engage in work related activities, but he is unable to do so at this time. Being placed in the Work Related Activity Group does mean that client would be required to start or return to work until able to do so. The view of the Secretary of State is that being assessed as having limited capability for work is not a statement that a claimant is ready to return to work but is meant as a supportive mechanism in the claimant’s overall wellbeing. Although they will be required to take part in a Work Focussed Interview and comply with any reasonable request made of them in that context, they would not be expected to take part in any activity that would be detrimental to their health. Often suitable congenial employment is prescribed as part of treatment for recovery from depression and work-related activity is intended as a first step towards that goal, rather than being left without purposeful daily activity.

Client states in his letter of appeal that it is stated on page 15 of the ESA85 medical report that he gets into frequent fights and confrontations and that he often misinterprets what people are saying to him, leading to outbursts of anger and frustration. There is however, no evidence to suggest that client has on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace. Although client swore on occasion during the assessment, this was born out of frustration when he was trying to describe how he was feeling and was not meant as abuse.”

Raises a few issues this one…can DWP prescribe work activity now? Also, seems an interesting interpretation of what the WRAG actually is.

How did assessor know that swearing was not abuse?

Finally, in the ESA85 the assessor has wrote that “He often misinterprets what people are saying to him which leads to outbursts of anger and frustration.Typical day suggest that he gets into frequent fights and confrontations as a result of this.” Yet the DWP response is that there is no evidence of daily outbursts, a bit of a contradiction…

‘supportive mechanism in the claimant’s overall wellbeing’? ‘congenial employment’??????

Don’t know whether they need to be given a dictionary or have it taken away from them…

Oh my ears and whiskers….

Take the dictionary away, they use words like this to pretend they know what they’re talking about.

“How did assessor know that swearing was not abuse?”

Context, at a guess.  There’s a world of difference between “B*****ks, I can’t remember”, “What’s that f***ing thing called”, “I’m s**t at that” and calling someone the illegitimate lovechild of IDS and a partially trained baboon.

I swear a lot, but only rarely in an abusive way, I’ve just got a touch of sailor-mouth.

I was involved in a meeting with DWP ESA decision makers 2 weeks ago, and i suggested that DMs look for loopholes to NOT award benefits or SG ESA status. This was strongly denied (surprise surprise) but this sub has all the hallmarks of someone trying to get out of awarding SG status with arbitrary Bulls##t (apologies for swearing, its uncontrollable)

I’m with Lorraine in that I swear a lot ‘conversationally’ ;-)

However, I’ve know people in my time who swear ALL the time without any kind of inbuilt sensor.  Disinhibited behaviour anyone?  Doesn’t have to be abusive….....

Problem with Reg 35 is that, according to DWP, Work Related Activities are ‘reasonable’ by definition:

See ESA (Work Related Activity) Regs 2011:

3(4)  A requirement imposed under paragraph (1)—

(a)  must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances; and

(b)  may not require the person to—

(i)  apply for a job or undertake work, whether as an employee or otherwise; or

(ii)  undergo medical treatment.

Then there is an UT decision that as the Secretary of State sets Work Related Activities, a Tribunal can only assess risk if it knows what those activities are:
See CE/1750/2012:
http://www.osscsc.gov.uk/judgmentfiles/j3744/CE 1750 2012-00.doc

Also see DMG 41/12, which says:

2 WRA is activity which makes it more likely that the claimant will obtain or remain in
work, or be able to do so. From 3.12.12, WRA includes work experience or a work
placement.

3 Where a claimant is required to undertake a work placement as part of their WRA
action plan, this is not paid or unpaid work. The guidance in DMG Chapter 41 about
work, including exempt work and remunerative work, does not apply.

4 Claimants will not be required to undertake work experience as part of their WRA
action plan, although they can participate on a voluntary basis. DMs should note that
where a claimant fails to undertake work experience, as this is not a failure to
undertake WRA, the guidance about reduction of ESA in DMG 53050 et seq and
paragraphs 5 – 33 below do not apply

http://www.dwp.gov.uk/docs/m-41-12.pdf

Effectively then, unless the risk arises from travel to or from a Work Related Activity, or would arise in a Work Focussed Interview rather than the subsequent work related activity (which I think is arguable in this case), to get Reg 35 we need to get a breakdown of all types of Work Related Activities provided in the area, then show that the claimant couldn’t undertake any without ‘substantial risk’.

Having said all that a lot of Tribunals (here at least) seem to be awarding Reg 35 anyway…

A recent decision by Judge Jacobs - CE/1750/2012 is quite clear that -

“The evidence on the work-related activity can only come from the Secretary of State.”

He then highlights that the only evidence the Secretary of State had provided with respect to the claimant in this case was stated as as follows:

“The purpose of being in the Work Related Activity Group is to take the first steps into looking at the barriers to future work and seeing if there are any ways to overcome these, including any reasonable adjustments that would need to be made to any work place, work station or job role. Mr H… would receive support throughout this from the Health and Disability Employment Advisor and it is not considered that this would cause a substantial risk to his mental or physical health. In form ESA113, [his GP] suggests voluntary work would actually aid Mr H…’s mental state.”

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3744

He goes on to hold that it is the nature of the claimant’s disabilities will determine the nature of the evidence that the tribunal needs in order to decide whether regulation 35(2) applies, adding that:

“Broadly, there are two possibilities. In some cases, the tribunal will need only general information in order to decide that a particular claimant does or does not satisfy section 35(2). For example: a claimant whose only disability is restricted mobility should have no difficult in attending an interview or an appropriate course. In other cases, the tribunal will need evidence on the specific nature of the activity that the claimant would have to undertake.”

The problem comes in relation to the last category - my reading of the decision is that if a tribunal decides with inadequate evidence of work related activity that someone does or doesn’t come under regulation 35(2) it will have made an error of law.

If running a regulation 35(2) argument should advisers ask the DWP pre-hearing what work related activity a client will be expected to undertake?

I agree with this, it used to be that the DWP had to produce a written ‘action plan’ from the work focussed interview (reg 58 ESA regs) but this as revoked in SI 2011/1349 and there doesn’t seem to be any requirement for the poor old claimant to actually have something in writing about his or her action plan. I must say that I cannot recall ever seeing an ‘action plan’ anyway.

I think this is ridiculous, the DWP must have written something down somewhere as they would never have a basis to consider ‘conditionality’ and I wonder if they could be directed by a Tribunal to disclose what they had in mind.

I have already tried the argument about the wide range of potential activities and how some may be harmful. The judge on that occaision rejected the argument saying that we would in effect have to establish that the DWP would force these actions on the appellant, not that there was a potential for them to do so and noted that it would be surprising if the DWP intended to force some activity onto a claimant that they knew would be substantially harmful.

I think we are back to asking for a direction before any hearing on Reg 35!

Problem with this case is that the DM has accepted the claimant is unable to work at present even though he wants to (everyone on the sick?).  When he would be fit enough to work seems to have been ignored. It has been conveniently assumed he would recover before losing his ESA in 12 months time even though he was born with the problem.  The DM has decided to prescribe treatment to the claimant without consulting the claimants GP, Psychiatrist and Social Worker. An assumption has been made that this person gets no support from the NHS or Local Authority and just rots or raves at home at the tax payers expense.  There is no evidence of unreasonable behaviour because the claimant did not hit the Approved Disability Analyst, only swore at him or in front of him (asking the army of professionals who support him in the community could help)?  There is clear evidence of violence and aggression. No consideration has been given to the safety of the people who will have to work with the claimant.  He could have received the support mentioned from the DWP while in the Support Group and been supported by his Social Worker, GP and Psychiatrist who could have notified the DWP when he is well enough to return to work.  This is a clear attempt to get someone off ESA with a political rather than medical statement.  It is indicative of ATOS and unfortunately now of Decision Makers.  Just another example of very poor and very expensive decision making in my opnion.  There is no doubt in my mind that the claimant will be placed in the support group at his Tribunal.  Clear evidence of the importance of sending in medical evidence with the ESA50 or ensuring a DM gets some.  Also clear evidence that support workers should attend with mental health patients or insist on a recording.

Perhaps the Decision Maker should pass on her theory to JC+........  Saw a Client yesterday with severe anxiety and panic attacks who was found fit for work and signed on as instructed as she wanted to work and thought work may help.  She told JC+ she sufferred from extreme anxiety and would like to undertake part time work and build up hours gradually.  She had a letter from her GP confirming this would help and would be ideal.  JC+ told her she had to be available to work 40 hours and was advised to appeal her ESA decision…......

From the DWP submission in post one.

Having limited capability for work…. is “a supportive mechanism in the claimant’s overall wellbeing”.  It’s butchery of the language such as this which gives me a propensity to uncontrollable episodes of aggressive behaviour.

Thank you Judge Mark and CE/3883/2012.

External Occupational Therapist opinion or Physiotherapists acting as ADA’s.  Same rule applies.

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3830

edited to mend link.

I’m dealing with a case of someone who is willing to take small steps in the work-related activity direction. But she does not want to be in WRAG because the demands may include job club and group events that she is not capable of participating in. I said she should argue that her willingness to do some work-related activity of her own choosing and at her own pace should not preclude her from arguing that she should be in the Support Group. Does anyone have any comments as to whether the Tribunal is likely to accept this?

Assuming there are good grounds/evidence for her to be placed in the support group, why mention to the tribunal the fact that she’s prepared ‘to take small steps in the work-related activity direction’ at all? If someone meets the statutory criteria for the SG, that’s an end of it - in the same way that there’s no conflict with/nothing to prevent a lone-parent who is entitled to IS from looking for work.

Surprise, Surprise….....  Client from original post has been placed in the Support Group.