AMENDED GROUNDS OF APPEAL SUBMISSION DATED 20-Feb-2012

Mrs C N.I. No. XXXXXXXX

Upon receipt of the DWP submission (as attached) we now wish to amend our appeal to claim that Mrs C (Mrs C) is still entitled to the work related activity component (WRAC) as from 13 weeks onwards from her initial date of claim ie 14th September 2011(or whenever) up until the date Mrs C attends a medical assessment that finds her capable of work if this being the case. However Mr Bryan XXXXXXXof XXX has now been advised by Mrs C that she has terminated her ESA claim as from the 7th February 2012 before receiving a medical assessment. Therefore, we argue that Mrs C is entitled to the WRAC from the 14th December 2011 (this being 13 weeks after her initial claim ie 14th September 2011) up until the 7th February 2012 equating to 8 weeks @ 26-75 giving a total of 214-00. Our argument in support of this is as follows... Firstly Mrs C is deemed to have limited capability for work from the date of claim (14th September 2011) under Regulation 30 of the Employment and Support Allowance Regulations 2008 (ESA Regs) in that...

30.(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined (a)whether or not the claimant has limited capability for work; (b)whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or (c)whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to

limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work). (2) The conditions are (a)that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and (b)that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimants entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless (i)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination; (ii)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or (iii)in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation. (3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(2).

Quite simply Regulation 30-(1)(a) confirms that a claimant will be treated as having limited capability for work until such time it is determined whether or not the claimant has limited capability for work if the conditions set out in paragraph (2) are met. We therefore now wish to explore Reg. 30-(2)(a) & (b) which we suggest applies to Mrs C in that the said regulations confirm her status of being treated as having limited capability for work from the outset of her claim up until a DWP medical assessment finds her fit for work if this being the case.

Regulation 30-(2)(a) states.... (2) The conditions are (a)that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations;

Reference to the Medical Evidence Regulations are found in the ESA Regs themselves....

PART 1GENERAL Interpretation 2.(1) In these Regulations Medical Evidence Regulations means the Social Security (Medical Evidence) Regulations 1976

Regulation 2-(1) of these regulations state...

Evidence of incapacity for work and confinement 2.(1) Where a person claims any benefit and his entitlement to that benefit depends on his being incapable of work in respect of the day or days to which his claim relates, he shall furnish evidence of such incapacity in respect of that day or those days either by means of a certificate in the form of a statement in writing given by a doctor in accordance with the rules set out in Part I of Schedule 1 to these regulations on the form set out in Part II of that Schedule or by such other means as may be sufficient in the circumstances of any particular case. The rules set out in Part 1 of Schedule 1state....

SCHEDULE 1 PART I RULES 1. In these rules, unless the context otherwise requires claimant means the person in respect of whom a statement is given in accordance with these rules; doctor means a registered medical practitioner not being the claimant; doctor's statement means a statement given in accordance with these rules; 2 weeks means any period of 14 consecutive days. 2. The doctor's statement shall be in the form set out in Part II of this Schedule. 3. Where the claimant is on the list of a doctor providing general medical services under the National Health Service Act 1946, or the National Health Service (Scotland) Act 1947, and is being attended by such a doctor, the doctor's statement shall be on a form provided by the Secretary of State for the purpose and shall be signed by that doctor. 4. In any other case, the doctor's statement shall be either on a form provided by the Secretary of State for the purpose or in a form substantially to the like effect, and shall be signed by the doctor attending the claimant. 5. Every doctor's statement shall be completed in ink or other indelible substance, and shall contain the following particulars: (a)the claimant's name; (b)the date of the examination on which the doctor's statement is based; (c)the diagnosis of the claimant's disorder in respect of which the doctor is advising the claimant to refrain from work or, as the case may be, which has caused the claimant's absence from work; (d)the date on which the doctor's statement is given; (e)the address of the doctor,

and shall bear, opposite the words Doctor's signature, the signature of the doctor making the statement written after there have been entered the claimant's name and the doctor's diagnosis. 6. Subject to rules 7 and 8 below, the diagnosis of the claimant's disorder in respect of which the doctor is advising the claimant to refrain from work or, as the case may be, which has caused the claimant's absence from work shall be specified as precisely as the doctor's knowledge of the claimant's condition at the time of the examination permits. 7. Where, in the doctor's opinion, a disclosure to the claimant of the precise disorder would be prejudicial to his well-being, the diagnosis may be specified less precisely. 8. In the case of an initial examination by a doctor in respect of a disorder stated by the claimant to have caused incapacity for work, where (a)there are no clinical signs of that disorder, and (b)in the doctor's opinion, the claimant need not refrain from work, instead of specifying a diagnosis unspecified may be entered. 9. A doctor's statement must be given on a date not later than one day after the date of the examination on which it is based, and no further doctor's statement based on the same examination shall be furnished other than a doctor's statement by way of replacement of an original which has been lost or mislaid, in which case it shall be clearly marked duplicate. 10. Where, in the doctor's opinion, the claimant will become fit to resume work on a day not later than 2 weeks after the date of the examination on which the doctor's statement is based, the doctor's statement shall specify that day. 11. Subject to rules 12 and 13 below, the doctor's statement shall specify the minimum period during which, in the doctor's opinion, the claimant should, by reason of his disorder, refrain from work. 12. The period specified shall begin on the date of the examination on which the doctor's statement is based and shall not exceed 6 months unless the claimant has, on the advice of a doctor, refrained from work for at least 6 months immediately preceding that date. Where

13.(a) the claimant has, on the advice of a doctor, refrained from work for at least 6 months immediately preceding the date of the examination on which the doctor's statement is based, and (b)in the doctor's opinion, it will be necessary for the claimant to refrain from work for the foreseeable future, instead of specifying a period, the doctor may, having regard to the circumstances of the particular case, enter the words until further notice. 14. The Notes set out in Part III of this Schedule shall accompany the form of doctor's statement provided by the Secretary of State. 15. A doctor may, having regard to the circumstances of the particular case, indicate on the doctor's statement that the claimant should be considered for vocational rehabilitation.

Part 11of this Schedule states....

PART II FORM OF DOCTOR'S STATEMENT DOCTOR'S STATEMENT

Therefore the evidence quoted in order to prove incapacity for work is merely a Doctors sick/fit note. We also wish to point out the contents of the following legislation brought in on the 6th April 2010 which amends the Social Security (Medical Evidence) Regulations 1976, these being the...

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010
These new Medical Evidence Regulations 2010 now make direct reference to the ESA Regulations themselves in that... 2.(1) The 1976 Regulations are amended as follows.

(2) In regulation 2 (evidence of incapacity for work, limited capability for work and confinement) for paragraph (1) substitute the following 2.(1) Subject to regulation 5 and paragraph (1A) below, where a person claims to be entitled to any benefit, allowance or advantage (other than industrial injuries benefit or statutory sick pay) and entitlement to that benefit, allowance or advantage depends on that person being incapable of work or having limited capability for work, then in respect of each day until that person has been assessed for the purposes of the personal capability assessment or the limited capability for work assessment they shall provide evidence of such incapacity or limited capability by means of a statement given by a doctor in accordance with the rules set out in Part 1 of Schedule 1 to these Regulations

The evidence of such incapacity or limited capability states it to be in the form of a statement as described in... SCHEDULE 1 PART 1 RULES 2. Where a doctor issues a statement to a patient in accordance with an obligation arising under a contract, agreement or arrangement under Part 4 of the National Health Service Act 2006(8) or Part 4 of the National Health Service (Wales) Act 2006(9) or Part 1 of the National Health Service (Scotland) Act 1978(10) the doctors statement shall be in a form set out at Part 2 of this Schedule and shall be signed by that doctor. 3. Where a doctor issues a statement in any case other than in accordance with rule 2, the doctors statement shall be in the form set out in Part 2 of this Schedule or in a form to like effect and shall be signed by the doctor attending the patient. Part 2 of the said schedule states and illustrates the following...

PART 2 FORM OF DOCTORS STATEMENT

This being quite simply a Doctors sick/fit note as explained in the SCHEDULE 1 PART 1RULES at 5.
Mrs C has indeed sent in valid sick notes (Form MED3) in order to validate her initial claim which is not disputed by the DWP. Therefore we suggest the first limb of Regulation 30-(2)(a) of the ESA Regulations are now satisfied and therefore we wish to draw the attention of the Tribunal to the second limb ie 30-(2)(b)....

(b)that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimants entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having limited capability for work under regulation 22 or 23 unless (i)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination; (ii)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or (iii)in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.

We suggest that Regulation 30-(2)(b) is also satisfied in this particular case as it has not been determined that Mrs C does not have limited capability for work under Regulation 22 &23 of the ESA Regs as she has not failed to furnish any information upon request by the DWP nor failed to attend a DWP medical examination. Therefore we suggest that under Regulation 30-(1) & (2) of the ESA Regulations and taking into account both the Medical Evidence Regulations 1976 & 2010, Mrs C has been deemed to have limited capability for work from the 14th September 2011onwards.

The Work Related Activity Component

We agree as at paragraph 2 of the DWP submission that the conditions of entitlement to the WRAC are defined in Section 4(5) of the Welfare Reform Act 2007.

4 (5)The conditions of entitlement to the work-related activity component are (a)that the assessment phase has ended, (b)that the claimant does not have limited capability for work-related activity, and (c)that such other conditions as may be prescribed are satisfied.

The said section has three (3) distinct parts to it. In relation to Section 4(5) (b) we agree that Mrs C does not fall into this category as we have never suggested that she was deemed to have limited capability for work related activity status. We have contended that she has simply been deemed to have limited capability for work as per Regulation 30 of the Employment & Support Allowance Regulations 2008.

Section 4(5)(c) of the Welfare Reform Act does not give any particular direction or instruction so therefore we suggest the said section is also satisfied unless otherwise proved to the contrary.

This leaves Section 4(5)(a) which states that the assessment phase has to have ended in order that the applicant Mrs C is entitled to the WRAC.

The assessment phase is defined in Regulation 4(1) and (2) of the ESA Regulations 2008 as follows...

4.(1) Subject to paragraph (2) and regulations 5 and 6, the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act. (2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet been determined whether the claimant has limited capability for work (a)the claimant having been assessed in accordance with a limited capability for work assessment; or (b)as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work), the assessment phase will end when the limited capability for work determination is made.

Basically Reg 4(1) - (13 week assessment phase) applies after taking into account Reg 4(2)(a) & (b).

Paragraph 4(2)(a) again states.... the claimant having been assessed in accordance with a limited capability for work assessment; The emphasis here being ...having been assessed..., note this being the past tense! Therefore for the 13 weeks assessment period to continue indefinitely the applicant must have had a limited capability for work assessment carried out within the 13 week period of claim awaiting determination. If the limited capability for work assessment has not been carried out within the 13 week period then the

assessment phase has ended for the purpose of payment of the WRAC. The limited capability for work assessment is defined in the ESA Regs at....

Part 1 General Interpretation 2-(1) In these regulations

limited capability for work assessment means the assessment of whether a person has limited capability for work as set out in regulation 19(2) and in Schedule 2; Regulation 19(2) states... (2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2..... The activities prescribed in Schedule 2 are eg... 1. Walking with a walking 1 (a) Cannot walk at all. stick or other aid if such aid is normally used. 15

(b) Cannot walk more than 50 metres 15 on level ground without repeatedly stopping or severe discomfort. (c) Cannot walk up or down two steps 15 even with the support of a handrail. (d) Cannot walk more than 100 metres 9 on level ground without stopping or severe discomfort.

(e) Cannot walk more than 200 metres 6 on level ground without stopping or severe discomfort. (f) None of the above apply. 0

Therefore the limited capability for work assessment is the actual ATOS medical and therefore if the said ATOS medical has not been carried out within the 13 week period from date of claim then the assessment phase has ended for the purpose of Reg. 4(1) and therefore the WRAC is payable.

Secondly Reg. 4(2)(b) is also not engaged as explained above Mrs C is deemed to have limited capability for work from the outset of her claim under Regulation 30 of the ESA regulations and not those mentioned in 4(2)(b) Welfare Reform Act namely reg. 20,25,26,29 or 33(2) of the ESA Regs 2008.

Conclusion We suggest that Mrs C is entitled to the WRAC as from 13 weeks from her claim ie from 14th December 2011 up to the date she terminated her claim ie 7th February 2012 (or up to your clients date of determination after the ATOS medical finding them fit for work) and this is so simply because the DWP have failed to give Mrs C a medical within the 13 week period. We believe the assessment period can only be extended beyond the 13 week time frame if the medical assessment has been carried out within the 13 week period and a determination is waiting to be made.