Hi there,
CIS/4304/2007 says the test of incapacity to be employed as a 'worker no longer working' who is now sick, is whether or not the person is capable of the work they were doing, or the work they sought, and is NOT the test that is used to decide Incapacity Benefit (and therefore presumably Employment and Support Allowance). This confirms that the gap between going sick and claiming ESA is not important, as long as it would be possible to satisfy the requirements of CIS/4304/2007.
Just in case it helps, the test of temporary sickness for the purposes of Reg 6(2)(a) is I think in CIS/3890/2007 (decided 25.5.2006), says that ‘temporary incapacity’ means a condition ‘which had a certainty of recovery’.
Steve
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