Firstly, please accept my apologies as I have limited experience of incapacity benefits (I'm an HB person!), but I have received a query from a colleague and am trying to advise as best I can.

Client has been attending residential rehab treatment course for drug use for the last 9 months. During this time has been in receipt of incapacity benefit & has been attending various training & education courses that have really helped with rehab. Has just finished treatment programme and moving out into hostel accommodation this week. Has just been told by DWP that incap has stopped due to being deemed capable of work and that needs to claim JSA instead.

Support worker believes the process of job hunting and the movement away from the training courses, along with move to a hostel, is likely to lead to a return to drug use.

A few questions - Is the best option to appeal the incap decision? Should they try to apply for IS or JSA? Should the DWP take the likelihood of future health problems into account, or do they just look at the clamiant's current health? How much weight would a letter from the treatment provider hold in any decision, especially if it referred to a likely lapse back into drug use? Would a sick note from the GP be useful?

Any advice very welcome. Again, apologies if this query seems a little basic!

Is the best option to appeal the incap decision? It is adviseable to appeal against the refusal, simply because so many refusals related to incapacity for work are found to be erroneous.

Should they try to apply for IS or JSA? He has a choice, if he does lodge an appeal against the refusal of incapacity benefit. He can either claim JSA, which does not prejudice his chance of winning his appeal on incapacity for work. He can claim IS instead, under which his IS personal allowance is reduced by 20% whilst the appeal is outstanding. However, as well as receiving less money under this route, he also risks losing NI credits if the appeal on incapacity is unsuccessful.

Should the DWP take the likelihood of future health problems into account, or do they just look at the clamiant's current health? DWP and an appeal tribunal will only take into account the circumstances and situation as at the date of claim/relevant decision.

How much weight would a letter from the treatment provider hold in any decision, especially if it referred to a likely lapse back into drug use? A letter may be useful for his appeal on incapacity, subject to the caveat referred to in previous question.

Would a sick note from the GP be useful? Again, this is mainly in connection with the appeal relating to incapacity for work. In both this case and any letter from a treatment provider, it is best if you can relate the contents of any such evidence directly to the entitlement conditions of incapacity benefit under the Personal Capability Assessment.

More in Disability Rights Handbook 32nd edition, chapter 11, page 64 onwards.

Q "Should the DWP take the likelihood of future health problems into account, or do they just look at the clamiant's current health?"

A "DWP and an appeal tribunal will only take into account the circumstances and situation as at the date of claim/relevant decision".

True but this sounds like a case where Reg.27(b)(as reinstated by the Court of Appeal in Howker) might apply. Notwithstanding that they fail the PCA, a person can be treated as incapable of work if, by reason of some specific disease or bodily or mental disablement:
"there would be a substantial risk to their mental or physical health if they were found capable of work".

This involves assessing risk, ie. 'the likelihood of future health problems' as at the date of decision.

I would certainly use this as one ground for appeal.

Richard Atkinson

Thank you everyone for your help - extremely useful.
Regards

Yes, very good point Richard, thanks for that.