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

esa and initial medical certificates

margaret macs
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Money Advice and Community Support Service, Brighton

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Joined: 18 June 2010

Hi, I’ve just had a client find out that ESA stopped payment 3 weeks previously apparently because her medical certificate ran out.  In fact the certificate ran for a further 3 months (6 months in total), but the ESA telephony section advised her that initial certificates are only accepted for 3 months.  She hadn’t been advised of this at any time during the claim process, and I’ve not heard of it before.  Has our local ESA section made this up (they are a shambles!) or are they relying on some regs/guidance I can’t find?

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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For once they are right but see below.  The sick note can only be for an open ended period once the person has already provided sick notes for 6 months (actually the correct terminology is advice from a doctor to refrain from work).  It was the same for ESA prior to the introduction of fit notes and for ICB but the relevant period then was 6 months not 3 (see the medical evidence regs).  So, in effect, the first sick note should be for a maximum of 3 months, the second one should be the same and the third can be for any length of period.

However, this needs watching as periods on SSP count for these purposes so DWP staff might not, if they are acting on blanket advice, be giving correct information at all unless they are carefully checking a claimant’s incapacity status.

Kevin D
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Independent HB/CTB administrator, consultant & trainer (Essex)

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nevip - is there any legal basis for this?  I recently challenged this and no one was able to provide any LEGAL basis for this approach; only referring to “guidance” and “procedures”.

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Paras 11, 12 and 13 of schedule 1 of the Social Security (Medical Evidence) Regulations 1976.

Kevin D
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Independent HB/CTB administrator, consultant & trainer (Essex)

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I was hoping this was going to be a triumph of DWP optimism and guidance over solid legislation.  But, for once, a legal basis.  Thanks for the response nevip,

margaret macs
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Money Advice and Community Support Service, Brighton

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thanks everybody.  I now know where we stand

Ken Butler
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Disability Rights UK

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The attached might be of interest - the DWP guidance to GPs and to hospital doctors regarding the issuing of a Med 3 Statement of Fitness for Work.

Both highlight that the first two med certs issued can be for no longer than 3 months.

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Tom H
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Newcastle Welfare Rights Service

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Don’t forget reg 32A ESA Regs.  Whilst payment has stopped, it’s unlikely the ESA award itself has been ended.  A new sick note closing the gap would appear to allow ESA to continue being paid from the date it was stopped.  It’s also unclear what would happen if the client relied on 32A(d)(ii) below in these circumstances.

Claimants to be treated as not having limited capability for work at the end of the period covered by medical evidence

32A. Where the Secretary of State is satisfied that it is appropriate in the
circumstances of the case then a claimant may be treated as not having limited
capability for work if–

(a) the claimant has supplied medical evidence in accordance with regulation
30(2)(a);

(b) the period for which medical evidence was supplied has ended;

(c) the Secretary of State has requested further medical evidence; and

(d) the claimant has not, before whichever is the later of either the end of the
period of 6 weeks beginning with the date of the Secretary of State’s request
or the end of 6 weeks beginning with the day after the end of the period for
which medical evidence was supplied–

(i) supplied further medical evidence, or

(ii) otherwise made contact with the Secretary of State to indicate that
they wish to have the question of limited capability for work
determined.