Regulation 35 and support group

Do you know anything about case law cse/385/2014 (2015 UKUT 142 AAC) ?
'Appellant must do more than raise the issue of regulation 35 in order for tribunal to be required to assess risk of work related activity' and what that means if trying to get into support group with reg 35.?

traybell wrote: Do you know anything about case law cse/385/2014 (2015 UKUT 142 AAC) ?

'Appellant must do more than raise the issue of regulation 35 in order for tribunal to be required to assess risk of work related activity' and what that means if trying to get into support group with reg 35.?

Hi tb,

Yes, it's here :

MH v S of S. [2015] UKUT 142 (AAC)


From Para 10. :

"As I have explained above the tribunal did not need to go on to consider the question of risk in the context of work related activities as the claimant had not established that any risk arose as a consequence of her debilitating condition.

The claimant therefore had no realistic argument under regulation 35.

To reiterate the comments made in paragraph 110 of IM it is only where it turns out that there is a serious argument in relation to regulation 35 that the provision of information from the Secretary of State need be considered."

As the appellant had not put forward a "realistic argument" of how and why a "Substantial Risk" would occur, The DWP were not compelled to provide the Tribunal with information regarding what type of WRA the appellant may have to take part in, with reference to : IM v S of S. [2014] UKUT 412 (AAC) .

As a consequence, the Tribunal could make there own assessment on whether there would be a "Substantial Risk" from the evidence before them and their own knowledge of what was involved with taking part in WRA, and any subsequent risk factors.

It basically reiterates what we have been advising for some time.

In that, you cannot simply state that you feel that you qualify for The SG under ESA Reg 35, you must show how and why there would be a "Substantial Risk" to your health or that of another if you had to take part in any of the various forms of Work Related Activity. (WRA)

i.e. You must put up a "Realistic Argument"

ESA Reg 35 for entry to The SG (LCWRA) Under The Exceptional Circumstances Rule.

Plus : Post 28/01/13 Amendment :

(3) In regulation 35(1) (certain claimants to be treated as having limited capability for work-related activity)(6), for sub-paragraph (b) substitute—

“(b)the claimant is-

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii)likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii)recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or”.

From : www.legislation.gov.uk/uksi/2012/3096/regulation/4/made

ESA Reg 35. (2) (a) & (b) is the issue here.

"(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(1) is to be treated as having limited capability for work-related activity if— "

This refers to a claimant who cannot gain entry to The SG via qualifying under any one of : The SG (LCWRA)Schedule 3 Functional Descriptors

"(a)the claimant suffers from some specific disease or bodily or mental disablement; and"

The claimant must prove that they suffer the above.

"(b) by reasons of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity."

They must then show that they have a "Realistic Argument" (How and Why) which indicates that there would be a "Substantial Risk" to their own health or that of another if they were compelled to take part in the various forms of WRA, if placed into The WRAG rather than The SG.

bro58