A recent upper tribunal decision may have significantly increased the chances of employment and support allowance (ESA) claimants being placed in the support group rather than being forced to carry out work-related activities that cause a substantial risk to their health. The decision has come about because, just two months after taking power in 2010, IDS did away with one of the stages of the work capability assessment in order to push through the transfer of incapacity benefit claimants to ESA as hastily as possible.
The work-focused health related assessment (WFHRA) was a ‘second medical’ at which an Atos health professional looked at what capability for work you still had and ways in which it could be improved by the taking of steps in relation to your physical or mental condition.
The subsequent report was passed on to your personal adviser who used it to decide what kind of work-related activities you might be capable of. It was a vital part of the WCA because it was the only way the DWP passed on information about the way your condition affects you to the person supposed to be preparing you for work – they have never been allowed access to the medical assessment itself.
WFHRAs were suspended for two years in July 2010 due to their having achieved only ‘mixed results’ and because of the increasing backlog of ESA medicals. They were subsequently abolished altogether.
A recent three judge upper tribunal hearing, however, has almost reinvented the WFHRA.
The tribunal were hearing a case in relation to regulation 35(2). In essence, this says that if because of your health condition or disability, there would be a substantial risk to the mental or physical health of any person if you were required to carry out work-related activities, then you should be placed in the support group.
The tribunal judges held that where a tribunal is considering whether a claimant should be covered by regulation 35(2) the onus is on the DWP to provide a significant amount of additional evidence if they think the claimant should not be placed in the support group.
This includes evidence about what activities work providers in your specific location send people on, which ones it would be reasonable to require you to do and what mechanism the DWP can point to that will give the tribunal confidence that the information will be effectively communicated to the work programme provider and acted upon.
If the DWP can’t do all this to the tribunal’s satisfaction then it must find that you are eligible for the support group.
Not surprisingly the DWP are very unhappy about this and are appealing the decision to the Court of Appeal. In the meantime, the DWP appear to be trying to get all appeals to first tier tribunals that raise the issue of regulation 35 stayed until the Court of Appeal has heard the case and reached a decision – which could be many months away.
We’ve updated both of our guides to claiming ESA to take account of this decision.
Meanwhile, if you are an ESA claimant, we’d be very interested to see your comments below on what work-related activities you have been forced to do and whether they were appropriate.