Catch 22? too ill to get into support group?

Wow, talk about circular thinking!

I wonder what the effect of the finding that a person could not lawfully to made to engage in WRA when there’s no prospect of his ever returnign to work might be. Could have ramifications…

Comment: as this interpretation would remove the most seriously disabled people from the support group and higher benefit rates, that anomaly means it cannot be right.

Well, I suppose the DWP would say the most seriously disabled would meet a Schedule 3 descriptor, so it only affects the group at the top end of seriousness but slightly below meeting any descriptor. Of course, in reality, the descriptors do not cover every area of potential disability, so it could affect some of the most serious cases as well.

My objection is more that the question is being begged. How is it to be decided whether a claimant can ever work again, or can reasonably cope with any WRA? What are the criteria for this?  I thought this was decided by… (surprise) the descriptors and regulation 35. That is certainly the DWP’s view. If you don’t meet one, you’re going to be sent on WRA, and you’re going to be treated as someone who ‘can work in the future’ (as they like to say). The UT’s approach here suggests that there is some ‘other’ criterion for deciding this question, but what is it?

MrFinch - 20 February 2014 09:26 AM

The UT’s approach here suggests that there is some ‘other’ criterion for deciding this question, but what is it?

(7)In this Part, “work-related activity”, in relation to a person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so.

If there’s no prospect of a return to work any WRA is unlawful. Therefore on strict reading of reg 35 no risk can arise.

In CF v SSWP (ESA) [2012] UKUT 29 (AAC) the GP had advised “this person will never return to work”; there’s your criterion! In that case the prospect of being referred in to WRA was perceived to have been at risk of doing the appellant’s head in to such a degree that a substantial risk arose.

In a broader sense I’d imagine that a decision to refer into the WP is appealable, if not any consequent sanction decision is and if the WRA was not “reasonable” as it does not meet the test laid down in S13(7) due to the fact that it would not make it more likely that the person will obtain or remain in work or be able to do so that seriously weakens the sanction decision.

I know it’s a bit out of context but I can see Judge Mark’s point in a broader sense. This could be quite interesting…

ed for quote tags

I think the risk should be looked at as a question of fact rather than law. In other words, the risk might be that inappropriate WRA will be mandated, which is hardly much of a stretch of the imagination. It’s unlawful to burgle someone’s house, but that doesn’t mean there’s no risk of it happening.

The other problem is that the GP’s opinion is being taken as a fact rather than as evidence. The DWP might not agree. The DWP (in effect) set the Schedule 3 descriptors, so by not prescribing certain limitations they are reaching a different conclusion to the GP as to who might return to work. GPs routinely advise that a person cannot work at the moment, but this is not taken as conclusive. Why would it be any different for a potential future prospect of doing so?

Thanks for the above, I reckon it must be easiest to use the ‘don’t make assumptions’ approach in:-
AP v Secretary of State for Work and Pensions
[2013] UKUT 0553 (AAC)
CE/698/2013
8 November 2013
Practice and procedure – evidence – ESA Regs reg 35(2) – mental impairment – proper evidence required about the specific nature of the activity the claimant would have to undertake – secretary of state had disregarded tribunal direction to produce such evidence – error to make assumptions in secretary of state’s favour – cannot disregard reg 35 nor assume secretary of state would require only activities the claimant could reasonably manage.

An argument that I’ve used (so far succesfully) runs like this:

It is important to first note that Regulation 35 doesn’t only confer protection; it also confers entitlement that is represented by increase in amount of benefit paid and exemption from time limiting while the claimant is in the support group

The intent for claimants in the work related activity group is that those claimants are expected to return to work:

“Employment and Support Allowance for people in the Work Related Activity Group was never intended to be a benefit for the long term, but an interim measure for those who are expected to move into work.” - see briefing attached.

In practice the Secretary of State uses any discretion given by Regulation 3 to determine when to refer claimants to a work programme, not as discretion as to whether to compel them. This is evidenced by DWP e-zine Touchbase:

“Phase 2 - From mid-November 2012, and subject to agreement with existing Work Programme providers, DWP is working towards mandating all ESA claimants that it thinks should have another Work Capability Assessment in 12 months, to the Work Programme.”

“Phase 3 - In December 2012, the Department hopes to start a pilot which will test how ESA claimants, that it thinks should have another Work Capability Assessment in 18 or 24 months, can be supported by the Work Programme.”

Note use of the words “all ESA claimants…”.

There is no scope on the ESA85 to give a prognosis that a return to work is never going to be likely. The furthest they can go is to say no prospect ‘in the longer term’. Tribunals will be aware that they have been instructed that the longest they can recommend no reassessment within is two years. So it appears that if a claimant is given the maximum leeway of not to be reassessed for two years, all that does in practice is to defer referral to a work programme for one year, though it is important to note it does not preclude other work related activities being expected before then by an advisor within JC+

Work Programme Providers are not only not trained in assessing risks, but are paid by outcome

Given the above, there is no basis to assume that in practice Regulation 3 of the 2011 Regulations will be applied in such a way as to preclude any Work Related Activity for claimants who may have no prospect of any return to work.

Further, any such interpretation would act to discriminate against claimants who have no prospect of returning to work, in effect discriminating on the basis of Disability in breach of S3 of the Human Rights Act 1998 with reference to Article 14

Most tribunals will then ignore the legal mumbo jumbo and assume that everyone’s going to be sent to a job-club, which is what tends to happen anyway…