What to do if DWP disregard medical evidence saying you can’t do Work Related Activity #ESA

DPAC wish to thank John Slater for this article

Some claimants placed in the WRAG find that their medical condition has worsened, possibly because of the Work Related Activities (WRA) they must undertake, but when they notify the DWP to tell them, even if they have supporting medical evidence from their GP or consultant, the DWP work advisor or coach disregards the evidence and still insist for the claimant to undertake WRA because they are in the WRAG.

What follows is an explanation of why the DWP advisor/coach may be acting unlawfully, and of what claimants might be able do in this situation.

Why the DWP advisor/coach may be acting unlawfully

1. The Welfare Reform Act 2012 describes the purpose of work-related activity (“WRA”) as:

“making it more likely in the opinion of the Secretary of State that the claimant will obtain paid work (or more paid work or better-paid work).”

ESA Regulations state that any WRA “must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances”. They also permit the Secretary of State (“SoS”) to determine that a requirement as to the time at or by which WRA is to be undertaken is not to apply. Put simply this means the SoS can decide that a claimant doesn’t have to complete the previously specified WRA.

Therefore it can be argued that anyone imposing or compelling a claimant to undertake WRA that is likely to result in physical harm to the claimant is not having due regard to the person’s circumstances and in doing so is actually making it less likely that the claimant would obtain paid work. This means any work coach/advisor would be likely to be acting outside of their prescribed powers (i.e. unlawfully) and thus leaving themselves personally open to civil and/or criminal action (e.g. harassment as per the Prevention of Harassment Act 1997).

There is also the matter of the DWP own decision makers guides. Chapter 4 states:

• “04000 Supersession means changing a decision of a DM, a FtT or a UT and replacing it, from a later date than the original decision. Certain conditions have to be satisfied before a decision can be superseded. There is no time limit for making an application for supersession.”

• “What type of decisions can be superseded

04001 The following decisions may be superseded by a decision made by the Secretary of State

1. a decision on any claim for a relevant benefit

2. any decision of the Secretary of State that falls to be made under relevant Acts

3. any decision described in 1. & 2. as revised

but this is subject to regulations.”

• “04004 A decision (referred to below as the “original decision”) can be superseded either when an application has been made by the claimant or on the DM’s own initiative where

1. there has been a relevant change of circumstances since the original decision

1.1 had effect or

1.2 in the case of an advance award, was made”

This suggests that any work coach/advisor made aware of a change of circumstances by a claimant (e.g. WRA is no longer possible due to worsening health) should either treat it an application for supersession or as a minimum explain the process that the claimant must follow to apply for a supersession.

2. DWP work coach/advisor, work-related activity, new medical evidence and reconsideration

The fluctuation of medical conditions is not something that should come as a surprise to anyone at the DWP who deals with people claiming ESA. If someone’s health deteriorates who is assigned to the WRAG it is entirely reasonable that they would seek medical advice, notify the DWP of the change and that they are no longer able to carry out WRA. Ideally the claimant would obtain a letter or ‘sick note’ from their doctor to support their position. Such documentation is known as medical evidence.

The ESA Regulations 2008 defines medical evidence as:

(a) evidence from a health care professional approved by the Secretary of State; and

(b) evidence (if any) from any health care professional or a hospital or similar institution,

or such part of such evidence as constitutes the most reliable evidence available in the circumstances;”

By notifying the DWP that their health has deteriorated and that they can no longer carry out WRA the claimant can be regarded as asking for a reconsideration of their WRA or a supersession of the decision to place them in the WRAG (as explained earler). The ESA (Work-Related Activity) Regulations 2011 states:

“Reconsideration of action plans

7.—(1) A person may request reconsideration of an action plan.

(2) On receipt of a request the Secretary of State must reconsider the action plan.

(3) A decision of the Secretary of State following a request must be in writing and given to the person.”

Therefore a letter/sick note from a GP is medical evidence and as such should trigger an appropriate assessment of or reconsideration of the claimant’s particular circumstances (given that WRA must be tailored to the claimant’s specific circumstances and capabilities).

A work coach/advisor cannot be an appropriate person to make that assessment if it involves medical evidence as they are not medically qualified. Under Primary and Secondary legislation for ESA, healthcare professionals are the people that assess medical evidence provided by a GP or Consultant (or other health care specialist treating the claimant) and then make recommendations to the Secretary of State.

So what a DWP advisor/coach should do is to seek advice from a HCP without delay. The service to provide this advice is built into the contract between the Secretary of State for Work and Pensions and the Centre for Health and Disability Assessment Ltd (Maximus).

Section 8 Referrals specifies the following service requirement:

• “8.1. The Supplier will receive referrals from the Authority for Claimants who are at various stages in the claim. Referrals sent clerically will use the Authority’s courier service. For the WCA, referrals will also be made electronically, as described in Part J. Referrals will include, but are not restricted to, new claims, re-referrals, reassessment cases, and advice. The Supplier’s actions in processing these cases will be the same unless otherwise defined in this document.”

Section 13 of the contract reconsideration/advice to the authority specifies that:

• “13.1. The Supplier must provide any advice and/or clarification that the Authority requires. It is anticipated that this advice will be provided by telephone, in writing, or via the referral system. However, the Authority would like to explore digital methods for this service during the Agreement.”

The outcome of that reconsideration or supersession might be any of the follow:

• a new WCA to determine if the claimant should now be placed in the Support Group,
• the claimant is placed into the Support Group by the Decision Maker, or
• changing/suspending the WRA for a period of time to allow the claimant’s health to improve.
• No change.
• No longer entitled to ESA (this shouldn’t happen without a WCA).

These are compatible with the law as it currently stands. ESA Regulations permit the SoS to determine afresh a person’s eligibility for ESA and also that a requirement as to the time at or by which WRA is to be undertaken is not to apply. Such powers must be exercised fairly and reasonably, and the DWP advisor/coach is not competent to exercise such powers on behalf of the SoS where it involves medical evidence.

3. Change in circumstances

Regulation 32 of the Social Security (Claims and Payments) Regulations 1987 and regulation 38(4) of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Claims and Payments) Regulations 2013 require claimants to notify the SoS of any change in circumstances that might reasonably affect their entitlement to benefit.

Whilst people usually think about this in respect of no longer being entitled to benefit, it should also be used to signal significant deterioration that could or would result in someone moving from WRAG to SG. As said before, ESA Regulations permit the SoS to determine afresh whether the claimant has or is to be treated as having limited capability for work-related activity. If a claimant has notified the SoS of a change in circumstances, a DWP coach/advisor is not competent to simply dismiss it out of hand and may be acting unlawfully by doing so.

4. What can be done?

Only claimants can do something about their situation. You will find below a template you might be able to use to challenge the DWP advisor/coach inaction if it applies to your particular circumstances. This letter is requesting that any WRA be stopped and that you be reassessed to see if you now qualify for the Support Group. People need to be aware that the outcome of a new WCA could result in a Decision Maker finding you are no longer eligible for ESA.

Complete the template or modify it to suit your particular circumstances. Then hand a copy to the DWP coach/advisor (with only a copy of the sick note or other documentation included) and also send another copy of the letter with the original sick note or other documentation (having kept a copy for your records) to the appropriate DWP District Manager at the DWP district office. The list of district offices can be found here:

https://www.gov.uk/government/publications/latest-list-of-jcp-district-offices-in-local-authority-areas-britain

You should explain that you have done this as you do not feel that you have any other option because of the DWP work coach/advisor inaction.

You should also contact your local MP and send them a copy of the letter sent to the DWP (along with a copy of the sick note or other documentation). You do not have to send the letters by recorded delivery but you should obtain free proof of postage from your Post Office. If you contact your MP, mention it in the letter sent to DWP.

Disclaimer

Please be aware that neither the author nor DPAC are qualified lawyers or welfare experts. The article is based on the author’s understanding of the welfare system but no warranty can be offered for its accuracy. The purpose of the article is to explain the possible options that might be available to people who are in the WRAG if their health deteriorates. Due to the complexity of the welfare system it is isn’t possible to produce a definitive step by step list of instructions that will apply to everyone. If people are going to use any of the information contained in the article and the template letter they must make sure it suits their specific circumstances. If you are unsure you should always seek professional advice.

Template for letter to the DWP DISTRICT OFFICE

Dear Sirs,

<INSERT NAME> National Insurance No <INSERT NI NUMBER>

Regulation 32 of the Social Security (Claims and Payments) Regulations 1987 and regulation 38(4) of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment Support Allowance (Claims and Payments) Regulations 2013 require me to notify the Secretary of State any change in circumstances that might reasonably affect my entitlement to benefit.

The ESA (Work-Related Activity) Regulations 2011 states that the Secretary of State must, upon request, carry out a reconsideration of an action plan and provide a written response.

The Social Security Act 1998 Section 10 states and decision made by the Secretary of State:

“may be superseded by a decision made by the Secretary of State, either on an application made for the purpose or on his own initiative.”

Therefore please regard this letter as formal notification that there has been a significant change in my circumstances. My health has deteriorated markedly to the point my GP*, Consultant*, Nurse* [*delete as appropriate.] has provided written medical evidence (original enclosed) that continuing with work-related activity at this time would be harmful to my health.

This evidence and my application for my case to be looked at again has been inappropriately ignored by my work coach. Therefore I feel I have been left with no option but to write to the DWP district office and also seek help from my Member of Parliament.

The deterioration of my health has left me severely restricted in respect of all daily activities and thus makes my continued allocation to the ESA Work-Related Activity Group inappropriate and in reality psychologically* / physically* dangerous [*delete as appropriate]. I have summarised the changes to my health below:

[ADD A LIST OF WHAT HAS CHANGED AND WHY WORK-RELATED ACTIVITY IS NOW HARMFUL. ALSO EXPLAIN WHAT YOUR GP OR CONSULTANT HAS SAID AND STATE THAT YOU HAVE INCLUDED A COPY OF THE SICK NOTE AND ANY OTHER CORRESPONDENCE FROM YOUR GP/CONSULTANT/NURSE ETC]

The Welfare Reform Act 2012 describes the purpose of work-related activity as:

“making it more likely in the opinion of the Secretary of State that the claimant will obtain paid work (or more paid work or better-paid work).”

ESA Regulations state that any work-related activity “must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances”. They also permit the Secretary of State to determine that a requirement as to the time at or by which work-related activity is to be undertaken is not to apply.

Therefore anyone imposing or compelling a claimant to undertake work-related activity that is likely to result in harm to the claimant is not having due regard to the person’s circumstances and is making it less likely that the claimant would obtain paid work. This means they would be acting outside of their prescribed powers and potentially leaving themselves personally open to civil and/or criminal action (e.g. harassment as per the Prevention of Harassment Act 1997).

I suggest that given the changes in my health outlined above it is neither reasonable nor safe to impose any further work-related activity on me until a fresh determination is made as to whether I should now be assigned to the ESA Support Group.

ESA Regulations permit the Secretary of State to determine afresh any WRA requirements and whether the claimant has or is to be treated as having limited capability for work-related activity. I request that this be completed at the earliest possible date by an appropriately qualified medical professional. Please note that I have retained a copy of this correspondence and proof of postage.

Yours sincerely

<INSERT NAME>

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