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Although there are no questions about it in the ESA50 questionnaire, a recent report has revealed that regulation 35 (2) (b) is now the most common reason for claimants getting into the support group of employment and support allowance (ESA). Not only that, but two thirds do so without having to endure a face-to-face medical.

Regulation 35 (2 ) (b), in a nutshell, is the regulation that allows entry to the support group for people who aren’t covered by the support group descriptors, but where there would be a substantial risk to their health or someone else’s health if they were found to be capable of work-related activities.

According to the fifth annual review of the work capability assessment, the proportion of claimants being placed in the support group is up from 10% to 47% and the most common justification for support group entry is now regulation 35 (2) (b): that there would be a risk of harm to the claimant or someone else if they were not placed in the support group.

In 2013 a total of 38% of all support group awards were on the basis of regulation 35, up from just 17% in 2009.

The report goes on to point out that two thirds of the claimants who are placed in the support group because of regulation 35 are not subject to a face-to-face assessment, the recommendation is made on the papers only.

The message is clear.

Claimants need to be fully aware of regulation 35 (2) (b), covered in our guides under exceptional circumstances rules.

And if you think it might apply to you then you need to give detailed and accurate evidence on your claim form, even though you aren’t asked to, and obtain supporting evidence if possible. Doing so may not only allow you to get into the support group, but do so without the stress of a face-to-face assessment.

Comments  

#13 Paul 2019-12-03 18:46
Quoting Paul :
Just been refused a Blue badge under the new ruling, Appealing it using the Regulation 35, Am also waiting to hear the outcome of my PIP claim after my DLA Indefinite claim ended after 22 years, Am thinking I can use this again if I need to MR, Appeal my claim

Appealed twice and got a blue badge under regulation 35. Would not come under what they stated and not a risk to others when out
#12 Paul 2019-11-05 12:30
Just been refused a Blue badge under the new ruling, Appealing it using the Regulation 35, Am also waiting to hear the outcome of my PIP claim after my DLA Indefinite claim ended after 22 years, Am thinking I can use this again if I need to MR, Appeal my claim
#11 Paul 2019-11-05 11:56
Can a PIP claim be appealed under Reg 35?
#10 Waylay 2019-08-15 11:46
Quote:
I have read somewhere, maybe within the literature relating to making a claim on this site for ESA, which is invaluable, that some lawyers argue that one could fit this criteria for example, if someone with a mental health condition were put in the WRAG group, then the chances of them being able to meet the 'conditionality' and/or to follow the 'directions' of a JCB, would be compromised by their condition, thus leaving them vulnerable to being Sanctioned, which could in turn threaten their security and their state of mind. This could lead to them either harming themselves, or could arguably be seen as being harmed by the state, compounding their mental health condition when they are classified as vulnerable adults. etc....
This is exactly my situation...
#9 Richard CW 2019-02-27 19:03
Just wanted to record my thanks to you for the guides. Whilst I'm sure you realise they're good, it's always worth people like me who've benefited from them actually writing to thank!
They helped me prepare properly for the ESA claim renewal my wife has had to go through, so we could get the relevant facts recorded.
I still had to put a huge amount of work into it, but I feel that we have done our best.
I didn't do it all on my own, involving our local welfare rights adviser too, but I think it was easier for her because I'd written all the evidence down on continuation sheets and pre-completed the PDF form.
We had a right royal battle last time to get through under the special rules without a face-to-face assessment, but I'm hoping with this good preparation that they will give up when they see the initial submission!
So, at the risk of sounding like a broken record, I'm really grateful.
Best regards,
Richard
#8 shaun1 2016-05-11 18:07
Thank you so much for your invaluable guides. DLA to PIP (Enhanced care and mobility) and ESA Support Group for Asperger's son. No way I could have done it without your guides. PIP awarded as ongoing . So relieved it is all over.
+5 #7 Looby 2014-12-05 00:17
i want to say a huge thank you to all of you here

I was put in the support group after using your guides and literature. I read it all, including the stuff you have written as guidance for ESA assessors along with decision makers. I also studied the stuff written by the lawyers with regard to human rights and the law and tribunals. i read it all. I went through my application relating to all the above. I also wrote what could be described as a dissertation as a covering letter and within the form, when the questions were inappropriate to my mental health condition I just wrote, please refer to covering letter at the front. My Healthcare team also wrote lengthly reports, after I spent much time having to persuade them that the questions were not as straight forward as they appeared, using info from the guides to back me up as evidence. Many Docs and Psychiatrists still do not understand how the questions are designed to trip you up.

I also stitched all reports and covering notes to the ESA50 so that the chances of them going missing was greatly reduced.

After a year of waiting, I was placed in the support group without having to endure a face to face assessment. The only problem is that they have never officially informed me of this. The only reason I knew of this was a letter informing me that because of a change in my circumstances, (being placed in the support group), they had reassessed my claim. I dont know how many points I scored or what the decision was based on. Neither do I know how long they have placed me there before reassessment. This means I have no documentation for Dentists etc for free treatment etc. Im very afraid to contact them as they are so hostile.
+5 #6 Looby 2014-12-04 23:54
I have read somewhere, maybe within the literature relating to making a claim on this site for ESA, which is invaluable, that some lawyers argue that one could fit this criteria for example, if someone with a mental health condition were put in the WRAG group, then the chances of them being able to meet the 'conditionality ' and/or to follow the 'directions' of a JCB, would be compromised by their condition, thus leaving them vulnerable to being Sanctioned, which could in turn threaten their security and their state of mind. This could lead to them either harming themselves, or could arguably be seen as being harmed by the state, compounding their mental health condition when they are classified as vulnerable adults. etc....
+1 #5 Paul Richards 2014-12-04 19:20
Hi all,
Some very interesting comments and experiences on here with regard to this.
I also had never heard of this Regulation before until finding the reference to it on here.
I am certainly no law expert, but surely (I would think) that this could be appropriated to both physical and/or mental health.
Say (for instance) someone who was put onto the Work Programme or onto the WRAG and through their disability or accidentally, their leg(s) gave out and they tried to grab onto someone for support - they then accidentally pulled down that person also, with the other person hitting his/her head etc.
If it happened on the 'Work Provider's' property - then the 'Work Provider' could (conceivably) be sued by the second person who had been injured (??)
If so, let's hope that they had a very full and comprehensive Public Liability Insurance cover in place at the time!!
And, in answer to Stuart52, - I have no idea, but it should be (in my own personal opinion) be applicable to blind/partially sighted persons also, as given the right circumstances, awful things could occur to them in this situation also!
#4 stuart52 2014-12-04 17:57
I am not sure to what criteria reg 35 would apply to...mental health (behaviour) or physical or maybe both, my question is could it apply to blind/severe sight imparted? any ideas anyone? this regulation is new to me.
#3 AMT 2014-12-04 15:20
Whilst its good that reg 35(2)(b) isn't being ignored, I fear its use could have negative consequences. I completed an ESA claim on behalf of my son with loads of evidence to score enough points for the support group. We first got a work related decision based on a nonsense assessment of the descriptor scores which we asked to be reconsidered. I also resubmitted our Exceptional circumstances case updated with a recent incident of suicidal thoughts. They promptly granted support group using Reg 35 - but didn't bother to go back and rescore the descriptors. So we got the right decision but not for right reasons. The innaccurate descriptor scoring presumably remains on file to be used for reference in his PIP claim. You can't win with this! Tho' the excellent guidance on this site at least gives you a fighting chance!
#2 Plonker 2014-12-04 13:44
Any way of getting what we are entitled to is always welcome
#1 jane graham 2014-12-04 08:38
might be useful

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