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WCA closed due to gap in fit note - MR-able?
Hello, we’ve got a client who has been submitting medical certificates continuously since getting refugee status in the second half of last year. His last medical certificate expired on 4/2/24 and he’s had difficulty getting a new one (some GPs are much better at it than others!) and he also speaks no English, and has recently been diagnosed with a new health condition. UC issued a letter on 28/2/24 stating that his work capability assessment has been closed and he will now be treated as fit for work, because of the gap of 3.5 weeks of his not having submitted a new medical certificate. I haven’t seen one of these letters before, and have certainly seen clients have much longer gaps between med3s than this without the WCA being closed - the letter says you can MR the decision, is it worth doing this, and is there anything we can rely on in terms of legislation/policy/guidance, or to just explain the mitigating circumstances of our client?
Don’t know if it’s any help but the DWP’s latest operational change made it 21 days after fit note expiry before claimant removed from ‘health journey’ - see https://www.rightsnet.org.uk/welfare-rights/news/item/since-april-2019-two-thirds-of-universal-credit-wca-decisions-have-resulted-in-a-finding-of-lcwra
They see to have acted pretty swiftly!
Don’t see why you can’t get MR, provide evidence and explain delay in providing it
I don’t think this is an appealable decision as it’s simply a decision about whether or not to carry out an assessment (something the SSWP may do but doesn’t have to do). But if they’re saying you can MR then I would definitely go ahead & do so.
Legally, I would refer to the Social Security (Medical Evidence) Regs 1976.
Reg 2(1A) (https://www.legislation.gov.uk/uksi/1976/615/regulation/2) says:
‘Where it would be unreasonable to require a person to provide a statement in accordance with paragraph (1) above that person shall provide such other evidence as may be sufficient to show that they are incapable of work or have limited capability for work so that they should refrain (or should have refrained) from work by reason of some specific disease or bodily or mental disability.’
I’ve used this loads of times when people have had a gap in medical evidence - mostly in order to make sure LCWRA is awarded from the right date, but it’s the same principle. I’ve never had to go to appeal.
This guidance makes it clear other forms of evidence can be accepted: https://data.parliament.uk/DepositedPapers/Files/DEP2023-0791/101._Medical_evidence_including_fit_notes_V14.0.pdf
So I’d write asking for them to reopen the referral to a WCA with no gap, on the basis of other evidence (note any evidence provided by the claimant must be considered - see p2 of the guidance), & explaining a certificate will follow. And if he is awarded LCW/RA make sure the effects go back to the correct dates!
Don’t know if it’s any help but the DWP’s latest operational change made it 21 days after fit note expiry before claimant removed from ‘health journey’ - see https://www.rightsnet.org.uk/welfare-rights/news/item/since-april-2019-two-thirds-of-universal-credit-wca-decisions-have-resulted-in-a-finding-of-lcwra
Hi Daphne, I was looking at the UC guidance at https://data.parliament.uk/DepositedPapers/Files/DEP2024-0442/076._Health_conditions_and_disabilities_day_1_to_day_29_V15.0.pdf
It still states: “If a claimant stops sending medical evidence or it expires, they will leave the health journey.”
Has this 21 days grace period been incorporated in some UC guidance? I can’t find it :(
Don’t know if it’s any help but the DWP’s latest operational change made it 21 days after fit note expiry before claimant removed from ‘health journey’ - see https://www.rightsnet.org.uk/welfare-rights/news/item/since-april-2019-two-thirds-of-universal-credit-wca-decisions-have-resulted-in-a-finding-of-lcwra
Hi Daphne, I was looking at the UC guidance at https://data.parliament.uk/DepositedPapers/Files/DEP2024-0442/076._Health_conditions_and_disabilities_day_1_to_day_29_V15.0.pdf
It still states: “If a claimant stops sending medical evidence or it expires, they will leave the health journey.”
Has this 21 days grace period been incorporated in some UC guidance? I can’t find it :(
There is this Jo (can’t find the Rightsnet discussion forum post on this theme, think it was roughly April ish) FOI https://www.whatdotheyknow.com/request/work_capability_assessments_clos
Plus this updated version of https://data.parliament.uk/DepositedPapers/Files/DEP2024-0442/103._Medical_evidence_including_fit_notes_V18.0_.pdf
One of our clients has received a similar letter to Zoe’s client. A 3 page proforma with Appeal rights on page 3 (MR first).
I suppose the appealable decision must be the decision that the client is (treated as) fit for work.
Dunno about your case Andy but definitely think in a case where there was difficulty getting a med cert this should be challengeable.
I haven’t had any luck getting pharmacists to issue sick notes instead - has anyone?
I suppose the appealable decision must be the decision that the client is (treated as) fit for work.
Dunno about your case Andy but definitely think in a case where there was difficulty getting a med cert this should be challengeable.I haven’t had any luck getting pharmacists to issue sick notes instead - has anyone?
That would be my understanding Will re: the appealable decision.
Couldn’t agree more. In our case, Client had extenuating circumstances i.e. was too unwell to sort a fit note at the time, and the fit note the GP provided was backdated covering the relevant period.
No re: pharmacists and https://www.thepharmacist.co.uk/news/three-in-four-pharmacies-experiencing-a-pharmacist-shortage-mps-told/