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DWP will no longer remind ESA claimants of fit note expiry?
Has anyone heard of or have more news on the following?
From Disabled People Against the Cuts website -
“Urgent Warning for those in WRAG on Fit notes/sick notes please circulate
After news that GPs are now being told not to supply evidence for ESA or want to charge people a small fortune to do the job of a GP for writing reports – more tricks from the DWP to get claimant numbers down and trick people out of their entitlement from Disability Sanctuary which we are reposting. They say:
DWP are stopping sending out warnings that GP fit notes (sick notes) are running out in most areas, you wont know until your payments stop and you ring them. This has been the case in some areas already for a while now, but we have been told today that its something that they are stopping altogether this month. So keep a check on when your note runs out, and when you send one, ensure you check with them to make sure they have received a new note, or better still get an appointment to have it scanned onto the local Job Centre system so it goes live straight away (well almost.)
If posting you must send the note to the centre dealing with your claim, if in doubt then check with them via phone as if it goes to the wrong one they do not always forward them, (no surprises there!)”
With thanks to Disability Sanctuary
See http://dpac.uk.net/2013/07/urgent-warning-for-those-in-wrag-on-fit-notessick-notes-please-circulate/
Thanks for pointing that out Ken. But why a warning to those in the WRAG? As we know, they don’t need to submit fit notes. Assessment phase claimants, yes, possibly.
I read Reg 32A ESA Regs as preventing the termination of an ESA award unless the DM has notified the claimant of the expiry of his last fit note. But that’s not the same thing as saying that the DM must notify the claimant in every case where a fit note expires.
An up-to-date fit note is, as we know, one of the conditions for being treated as having LCW under Reg 30. So I suppose a DM could suspend payment of ESA under Reg 16 D&A if Reg 30 above was no longer satisfied. It would be harsh although I suspect the DWP might argue that the claimant would have been put on notice at the outset. Eg, form ESA40 (Oct 2011 version) which is issued, I think, with decision letters provides this:
“If you still have an illness or disability when the medical statement runs out, see your doctor to get another statement. If there is a gap between the end of one statement and the start of the next you may lose money. If you cannot get a medical statement for any reason, tell us straight away.”
Can a claimant whose ESA has been suspended in the above circs subsequently provide a backdated fit note in order to receive arrears for the suspended period? Part 1 of Sch 1 to the Medical Evidence Regs 1976 suggests not, as the doctor’s “assessment” of the claimant would appear in the present circs to have needed to take place at the start of the suspension. If that assessment did not take place until the day the claimant realised that his money had stopped, then Sch1 at least suggests the fit note is only capable of commencing from that day.
However, Reg 2 of the above Medical Evidence Regs provides:
“2.—(1) Subject to..paragraph (1A) below, where a person claims to be entitled to any benefit..and entitlement to that benefit depends on that person..having limited capability for work, then in respect of each day until that person has been assessed for the purposes of the..limited capability for work assessment they shall provide evidence of such..limited capability by means of a statement given by a doctor in accordance with the rules set out in Part I of Schedule 1 to these Regulations.
(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..have limited capability for work so that they should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disability.”
The question is whether the DWP’s failure to notify the claimant of the expiry of the old fit note makes it “unreasonable to require” him, for the purposes of para (1A), to supply a new one that complies with para (1). If it is unreasonable then he is not subject to the restrictions on backdating that apply to a new sick note under Sch 1 above. Para (1A)’s exemption expressly includes a past period (“or should have refrained”).
I would argue that despite form ESA40, it would be unreasonable to expect the claimant to timeously provide a fit note if he hasn’t been reminded with the result that a backdated fit note should be sufficient to allow ESA arrears to be paid for the period of the suspension.
Of course, the DWP will chance it as ever until there’s caselaw forbidding them (and even then that doesn’t always stop them).