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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.


#10 Mr H K Smith 2019-08-10 15:44
Does anyone know how to fill The Upper Tribunal Appeals Form?
#9 Plonker 2015-01-08 15:58
Hi all
I quoted this in my recent ESA 50 in December 2014. I was in SG and was kept in SG without f2f

I would recommend that if you are looking to get an award under Reg 35 you consider getting evidence to support your case
#8 Peter 2014-11-30 18:26
hi Jill
just start a new claim,with a sick note of course!
#7 brado 2014-11-30 18:04
Could someone help me I was put in the work related category for 12 months which will shortly come to an end. My job centre advisor couldn't come up with any job I could do with my health conditions. As my husband works I will no longer be entitled to any money which I feel is very unfair! What should I do?
#6 Jim Allison 2014-11-22 13:57
A very sensible decision by the Upper Tribunal, and clearly shows like all Courts of Law, they are totally independent.

Plus of course, their decision is binding on First tier Tribunals and Upper Tribunals because there were three judges sitting.

Of course the DWP have appealed to the Court of Appeal, but after studying the UT's judgement in detail, I see no grounds for the Court of Appeal to alter the original decision. To the best of my knowledge asking for all pending first tier tribunals decision to be stayed is not inevitable.

The DWP may challenge the decision of the Upper Tribunal by applying for permission to appeal to the Court of Appeal. However in order to obtain permission, the grounds of appeal must show an arguable error of law by the Upper Tribunal, or that there is some important point of principle or practice, or some other compelling reason for permission to be granted.

For that reason, if justice prevails the DWP's case will fail.
+3 #5 Richard Gregory 2014-11-21 01:40
I was put onto Incapacity Benefit back in 2000. I am also a carer for my wife so was given the Carer's premium top up. As soon as ESA came in I was sent to Atos and was told that I had a limited capability for work and had to do work related activity. I appealed and asked for another medical. Medical refused but appeal went to tribunal where the decision was upheld. Job Centre advisor told me I couldn't be a carer and claim ESA... Wrong! Even though I have to care for 35 hours each week to get the Carer's Component I am still expected to do WRA! I have to say, however, that the advisor has not pushed it and I have yet to be sent for WRA. This will come, no doubt. I am, however, supposed to have restrictions placed on WRA due to my carer committments. I want another medical, as I disagree with the Atos findings and should be in the support group. Also, isn't a second opinion a human right? Especially considering the Government's admission that 50% of Atod medicals were incorrect? Any advice?
+3 #4 Paul Richards 2014-11-20 21:44
Hi all,
As a secondary post to this one - (and with this in mind - could this also be a 'point in law' as such??):


If this 'Work Provider' can not, or will not, prove that they have some sort of 'proven' Public Liability Insurance in force - should the DWP be able to force you onto one of their 'approved' Work Programmes - (through one, or other of their 'approved' Work Provider Companies).

If they cannot prove it - then if I were you, I would definitely fight it as they/or you 'cannot prove that you cannot be considered to be a threat/and/or/d anger to yourself, or others for that matter'

As I have said before - it is very likely that these so-called 'Work Providers' probably do not have any/adequate PLI in force to take on people into the 'Work Programme' as such (they are most probably, very well UNINSURED for any eventuality)

The Companies, for the most part will most probably not care about their 'trainees' as they are getting so very much money for their Company from the 'Government'. One could conceivably be offset one against the other! Or maybe not!!
+2 #3 hs 2014-11-20 21:32
iv just been sent a letter to attend interveiw next week with a work adviser havnt had any medical but filled out a form july/aug no medical, im sending in drs certificates still tho. any advice please? i dont know what to expect panicking depression, im single parent and they keep on to me every week again will make me iller again, whats interveiw for? how often? any advice pls will be gratful , thanks.
+3 #2 Paul Richards 2014-11-20 19:57
Hi Peter,
Good for you for standing your ground with this overpaid private company - as I have said on here before, in a previous post - I am sure that a lot of these companies are probably not actually covered by a recognised public liability insurance.
This Company probably realised that you had it right and that it would be useless to pursue it in law, as they were most probably
I may be wrong, but I have a feeling that the Government probably take these companies on to 'enforce' their terribly failed and still failing, 'Welfare Reform' policies without going into the full ramifications of what they are actually doing, or for that matter, checking their full credentials.
All the Government sees is 1) Private Company 2) Pay them millions to get the lesser 'sick and disabled' people into 'work' by forcibly putting these poor unfortunate into the 'Work Programme'
3) The 'unemployment' figures will come down.

Shame on this terrible Tory/Lib Dem Coalition and not less, that jumped up ex-Guards Officer, 'bar-steward' IDS who has presided over so many people's suicides caused by their harsh policies and unfair sanctions. The latest by-election today may decide their miserable fates all. Let's sincerely hope so!

As I write this, there is a Channel 4 Party Political Broadcast being done on behalf of the 'Conservative Party - yeah!
More right-wing media lies and spin - who are they kidding!!
+4 #1 Peter 2014-11-20 16:14
I was put into the work group for two years, Appointments were made for me to attend and i declined, during a phone call by Ingeus to myself one day , i expressed concerns about my welfare on there premises, my health and saftey needs, i asked bout there insurance policy, and requested details of who it was with and the policy number, i was passed onto upper management, whom instructed myself that they did not have to tell me and that i would be sanctioned if i did not attend, i informed them that it is a requirement to display the details in a public place within full view of every visitor to the building they refuted this! i declined any further offer to visit there premises, and informed the job center of my position, nothing further was said and no further requests for me to attend ingeus were made, it did not effect my benefit, i suspect there is an issue with the providers getting insured? what do you think? i have now asked to be transfered into the support group.

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