How to Gain Exemption from DWP/Atos ‘Fit for Work’ & WRAG decisions by Applying ESA Regulations 29 and 35 NEW CAMPAIGN BY BLACK TRIANGLE & DPAC
Today, Black Triangle is launching our campaign to encourage the mass take-up of Regulations 29 and 35.
Working closely with all our members, supporters and our sister organisation Disabled People Against Cuts, we must rapidly ensure that EVERY sick and/or disabled person in Britain facing the inhuman DWP/Atos WCA abomination and their GPs (and Consultants, where applicable) are fully up-to-speed on the use and application of these regulations which grant lawful exemption and immunity from adverse Atos WCA decisions.
We believe that, properly applied (we explain how is some detail), their use may save tens, perhaps hundreds of thousands of sick and/or disabled people from untold suffering.
Everybody can play their part in this campaign by spreading the word as far and wide as possible. Please print out the draft letters and explanatory notes and submit them to your local medical centres/surgeries as well as any local advice and advocacy agencies.
You may even save lives.
Commenting on the recent case of Brian McArdle, 57, who died tragically just days after his Atos WCA the DWP issued the following statement:
“We encourage people to provide as much medical evidence as possible when they apply for ESA. Often, people found fit for work only provide the necessary evidence when they ask for a reconsideration or an appeal.”
(http://blacktrianglecampaign.org/2012/11/01/atos-benefits-bullies-killed-my-sick-dad-says-devastated-kieran-mcardle-13/)
From now on ~ Let there be no more excuses!
Let the DWP never be able to say again “we never knew – the necessary evidence was never provided”!
Please – in all cases – provide us with the feedback we need as to whether or not this has been appropriately applied by DWP Decision Makers to give the decision it was designed for. We are ready to pursue a case against them if they do not!
SOLIDARITY!
Black Triangle Campaign
Black Triangle Campaign
Explanatory Notes for Claimants and Advisers
ESA Regulations 29 and 35 ~ Exceptional circumstances
Important note from BTC: Please be mindful – possible confusion can arise between the terms having ‘limited capability for work’ as an exception/exemption (i.e. ‘Support Group) and ‘limited capability for work’ meaning being placed in the Work Related Activity Group (WRAG) in the legislation. We may revise our guidance based upon your feedback ~ we have endeavoured to explain the legislation and its interpretation in as clear a manner as possible. All feedback warmly welcomed. Thanks.
Regulation 29
29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2) This paragraph applies if—
(a)
the claimant is suffering from a life threatening disease in relation to which—
(i)
there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii)
in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;
or
(b)
the claimant suffers from some specific disease or bodily or mental disablement and, 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.
http://www.legislation.gov.uk/uksi/2008/794/regulation/29/made___________________________________________________________________
Regulation 35 – Certain claimants to be treated as having limited capability for work-related activity (WRAG)
35.—(1) A claimant is to be treated as having limited capability for work-related activity if—
(a)
the claimant is terminally ill;
(b)
the claimant is—
(i)
receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii)
recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c)
in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.
OR
(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—
(a)
the claimant suffers from some specific disease or bodily or mental disablement; and
(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.
http://www.legislation.gov.uk/uksi/2008/794/regulation/35/made Legal advice – Statutory Interpretation of the Regulations
The Black Triangle Campaign has consulted with Senior Counsel regarding the statutory interpretation of these regulations.
“Substantial” or “Serious”
Regulation 29 (2) (b) and Regulation 35 (2) (a) & (b)
These terms both apply to the word ‘risk’ and not to a patient’s ‘disease’ or ‘disablement’ (illness(es) or imparment(s). )
Therefore, the question before the General Practitioner is:
“If, as a result of the DWP/Atos Work Capability Assessment, your patient was found either ‘fit for work’ or to have possessed ‘limited capability for work’ (and placed in the Work-Related Activity Group) is it more likely than not that harm would result?”
Counsel has advised the exemptions must be applied to all cases where harm is likely .
Counsel further explained that, as the first duty of any doctor is to “do no harm”; in relation to any question regarding whether or not the ‘harm’ caused would be sufficiently ‘serious’:
- all that is required of the doctor is to make a simple clinical judgment as to whether or not ANY harm or deterioration to the patient’s condition would occur as a result of being found fit for work or placed in the WRAG.
To recap:
Any harm is itself sufficiently ‘serious’ or ‘substantial’ to warrant applying Regulations 29 or 35 in the correct statutory interpretation of this law because both words apply only to the word “risk“
With regard to the degree of harm it need only be “more likely than not” that harm to the patient would result from being found either ‘fit for work’ or having ‘limited capability for work’.
http://www.legislation.gov.uk/uksi/2008/794/regulation/35/made Explanatory Notes for Claimants
These draft letters are intended as a guide for the ‘exceptional circumstances’ regulations 29 and 35.
If you are in the process of applying for Employment and Support Allowance (ESA) you can submit the letter ‘ESA Assessment Letter for Claimants’ with your ESA50 form or hand it to the assessor at the work capability assessment itself (keep a copy of the letter you submit for your records).
Additionally, if you have been summoned by DWP/Atos to attend a Work Capability Assessment (WCA) or Reassessment; or you are in the process of appealing against an ESA decision finding you ‘fit for work’ or having ‘limited capability for work’ placing you in the Work Related Activity Group (WRAG) you should arrange an appointment with your GP and supply them with a copy of the “ESA letter for GP “ along with a copy of the “Cover letter for GP”.
Before your GP appointment you should write down the ways in which your physical or mental health, or that of other people, may be harmed if you are not awarded the benefit.
The question to be answered is simply:
“Would it be more likely than not that your physical or mental health (‘disease’ or ‘disablements’ in the words of the Regulation i.e. illnesses or physical and/or mental impairments) would be harmed if you were found either ‘fit for work’ or with ‘limited capability for work’ “.
“In what ways would your condition be exacerbated as the result of an adverse DWP/Atos WCA decision?”
It is entirely at the discretion of your GP whether he/she feels that such a letter is appropriate and warranted.
However, if they do support your view that Regulations 29 and/or 35 apply then we believe that these letters stating that fact will likely be very helpful indeed.
__________________________________________________________________
ESA letter for claimant to be submitted with ESA50 form or presented to the DWP/Atos WCA Assessor
To whom it may concern
Following this Work Capability Assessment I may be found
fit for work
or
placed in the WRAG (work related activity group)
In my opinion this will be contradiction of my own General Medical Practitioner’s knowledge of me over time, clinical assessment and medical certification.
My General Medical Practitioner is the custodian of my primary medical record which has been accumulated during my lifetime in the UK
My Past Medical History and current problems include:
1
2
3
4
5
I am of the opinion that exceptional circumstances Regulation 29 may apply:
‘Because of your physical or mental health condition or disability, there would be a substantial risk to the mental or physical health of any person, including you, if you were found not to have limited capability for work.’
Or with regard to the WRAG group decision that regulation 35 may apply:
‘Because of your physical or mental health condition or disability there would be a substantial risk to the mental or physical health of any person, including you, if you were found not to have limited capability for work-related activity.’
I am of the opinion that substantial risk exists because:
Yours sincerely
(Patient’s name)
___________________________________________________________________
ESA Appeal Letter to be completed by the Patient’s GP for submission to the DWP AND the Tribunals Service
To whom it may concern
I am this patient’s General Medical Practitioner and the custodian of the primary medical records they have accumulated during their lifetime in the UK.
Following a recent Work Capability Assessment this patient, in contradiction of my own knowledge of the patient over time, clinical assessment and medical certification was found:
fit for work
or
was deemed to have limited capability for work and was placed in the WRAG (Work Related Activity Group)
The patient’s Past Medical History and current problems include:
1
2
3
4
5
Although this person has been deemed “fit for work” I am of the opinion that exceptional circumstances Regulation 29 applies:
‘Because of your physical or mental health condition or disability, there would be a substantial risk to the mental or physical health of any person, including you, if you were found not to have limited capability for work.’
Or
With regard to the limited capability for work (WRAG Group decision) that regulation 35 applies:
‘Because of your physical or mental health condition or disability there would be a substantial risk to the mental or physical health of any person, including you, if you were found not to have limited capability for work-related activity.’
I am of this opinion because:
I disagree with the outcome of your assessment and support my patient in their appeal against your decision.
Yours sincerely
___________________________________________________________________
Cover Letter and Explanatory Notes for the Patient’s GP
Dear Doctor
Your patient:
Is applying for Employment and Support Allowance (ESA) and has been asked to submit evidence with their ESA50 Form
or
has been summoned for another reassessment of their capability for work
or
is in the process of appealing a recent DWP/Atos Work Capability Assessment (WCA) decision that they are ‘fit for work’
or
is in the process of appealing a recent DWP/Atos WCA decision that they have limited capability for work to be placed in the Work Related Activity Group (WRAG)
As a GP you may be at times inundated with requests for letters to support appeals.
This is a draft letter which you could amend in order to promptly assist your patient who is requesting supportive information for the purposes of a Tribunal Appeal for Employment Support Allowance (ESA).
The BMA Annual Representative Meeting in June passed a motion demanding that the WCA ‘end with immediate effect to be replaced by a rigorous and safe system that does not cause avoidable harm to some of the weakest and most vulnerable members of our society’ thereby making this BMA national policy.
The WCA involves the administration of a battery of questions contained in the ‘Logic Integrated Medical Assessment’ (LIMA) computer programme that comprehensively fails to adequately and accurately assess a patient’s ‘fitness for work’.
The operation of the assessment system has also been universally condemned for failing to take into account the disproportionate medical, social and other barriers that sick and disabled people face in the job market as a direct result of their disabilities.
The recent GMC publication of Good Medical Practice 2012 states clearly that a Doctor must (overriding duty or principle):
“take prompt action if you think that patient safety is or may be seriously compromised by inadequate premises, equipment or other resources, policies or systems.”
This draft letter attempts to address some of the abject failings of the WCA by invoking ‘exceptional circumstances’ Regulations 29 and 35 to be applied where a decision adverse to your patient may pose a ‘substantial risk’ to his/her physical and/or mental health and well-being. We have included legal advice from Senior Counsel which sets out clearly the manner in which these exemptions Regulation 29 (2) (b) and Regulation 35 (2) (a) & (b) are to be properly interpreted.
We wish to appeal to you make these regulations and their lawful application known to your colleagues, both within your practise and beyond.
Explanatory notes for General Practitoners
ESA Regulations 29 and 35 ~ Exceptional Circumstances
Regulation 29 (if found ‘fit for work’)
29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.
(2) This paragraph applies if—
(a)
the claimant is suffering from a life threatening disease in relation to which—
(i)
there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and
(ii)
in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure;
or
(b)
the claimant suffers from some specific disease or bodily or mental disablement and, 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.
http://www.legislation.gov.uk/uksi/2008/794/regulation/29/made Regulation 35 – Claimants to be treated as having limited capability for work-related activity (WRAG)
35.—(1) A claimant is to be treated as having limited capability for work-related activity if—
(a)
the claimant is terminally ill;
(b)
the claimant is—
(i)
receiving treatment by way of intravenous, intraperitoneal or intrathecal chemotherapy; or
(ii)
recovering from that treatment and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or
(c)
in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity.
OR
(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—
(a)
the claimant suffers from some specific disease or bodily or mental disablement; and
(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.
http://www.legislation.gov.uk/uksi/2008/794/regulation/35/madeLegal advice – interpretation of the regulations
The Black Triangle Campaign has consulted with Senior Counsel regarding the statutory interpretation of these regulations.
“Substantial” or “Serious” Risk
Regulation 29 (2) (b) and Regulation 35 (2) (a) & (b)
These terms both apply to the word ‘risk’ and not to a patient’s ‘disease’ or ‘disablement’ (illness(es) or imparment(s). )
Therefore, the question before the General Practitioner is:
“If, as a result of the DWP/Atos Work Capability Assessment, your patient was found either ‘fit for work’ or to possess ‘limited capability for work’ (and placed in the Work-Related Activity Group) is it more likely than not that harm would result?”
Counsel has advised the exemptions must be applied to all cases where harm is likely .
Counsel further explained that, as the first duty of any doctor is to “do no harm”, in relation to any question regarding whether or not the ‘harm’ caused would be sufficiently ‘serious’ – all that is required of the doctor is to make a simple clinical judgment as to whether or not harm would occur.
To recap:
Any harm is itself sufficiently ‘serious’ or ‘substantial’ to warrant applying Regulations 29 or 35 in the correct statutory interpretation of this law because both words apply only to the word ‘risk’ and not to ‘harm’.
With regard to the degree of harm it need only be “more likely than not” that harm to the patient would result from being found either ‘fit for work’ or having ‘limited capability for work’ (WRAG).
http://www.legislation.gov.uk/uksi/2008/794/regulation/35/made
Thu Feb 05, 2015 9:36 pm by 