nevip
welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since 22nd Jan 2004
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RE: clients handing in sick lines when appealing esa decision
Fri 29-May-09 12:52 PM |
Hi Steven
The whole of regulation 30 is: Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made 30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined— (a) whether or not the claimant has limited capability for work; (b) whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or (c) whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).
(2) The conditions are— (a) that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and (b) that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless— (i) the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination; (ii) a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or (iii) in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.
(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998
Paragraph 3 has to exist to disapply paragraph 2(b) when an appeal is made otherwise a person pursuing an appeal would not be treated as incapable of work and thus could not get paid until the appeal was determined.
Regulation 30, therefore (as you say), seems to apply to claims prior to the WCA being applied for the first time or to situations where a person has made a fresh claim following a failed WCA, but, equally it could be argued that regulation 30(1)(a) has relevance as it is arguable in that it allows for a person to be treated as incapable (when if fact he is not so because of failing the WCA) until a tribunal makes a final determination of fact that he is or is not incapable.
However, regulation 6 seems to operate for the purpose of maintaining the assessment rate of ESA payable until the appeal is determined and on the face of it appears to do no more than that. And, if it operates as a stand alone provision in the way you say it does, then it certainly imposes no further conditions on a claimant who is pursuing an appeal, for instance, to provide sick notes. The question seems to be does regulation 6 stand alone or must it be read with regulation 30, or, is regulation 30 not relevant in the first place.
To be honest, I’m quite confused now. The regulations seem to be not well drafted. I think that there is merit to both views and it would be helpful if a view from the DWP solicitors office were known or a case could be got in front of a commissioner.
Regards Paul
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