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Support Group Chances Increased By Upper Tribunal Decision

November 20, 2014

With many thanks to Benefits And Work.

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.

7 Comments leave one →
  1. philipburdekin permalink
    November 20, 2014 1:58 pm

    Personally I was refused support group for the first year of change, then I reapplied for esa but this time specifically for the support group because my illnesses have got worse, my illnesses are COPD, RHEUMATOID ARTHTRITIS, OUSTIOARTHRTIS, RAYNAUDS, FIBROMYALGIA, ME/CFS, TENOSYNOVITIS, DIABETES, AND NOW VASCULAR DEMENTIA. I’m still waiting for a decision since April 2014 but they did reply to my second esa claim and gave me some more money on my weekly benefit so that I didn’t lose out waiting for the results to come back. I’m probably one of the more lucky people to at least get some extra cash from them and it really does upset me to see all these people being thrown onto poverty and left to struggle and sometime die.
    Please please please someone protect us from our own Government and some of those in it.

  2. November 20, 2014 2:06 pm

    Reblogged this on sdbast.

  3. November 20, 2014 6:08 pm

    this isn’t me that’s on esa but my son hes in the WRAG .fibromyalgia,arthritis. has problems getting from his first floor flat to street level. doing housework and walking anywhere without excruciating pain.he never knows how good or bad his condition is going to be from one day to another. if he does something, say washing up, or vac lounge.. hes had it for rest of day because he’s in a lot of pain following any exercise no matter how small.from what he tells me, they want him to start up a photography business…..(loads of these sprouting up ,a lot doing it as a hobby too,) they want him to take out a loan to cover for equipment etc he needs (a loan he has no hope of paying back.plus he cant get his head around his own finances a lot of the lot of the time due to fibro fog,never mind business accounts.). Interserve, the people who are trying to ,supposedly, get him fit for work, (by sitting talking to him?) have now told him he has to attend fortnightly ,instead of monthly. they told him if he didn’t apply for that loan they could put him to work in a charity shop.he still hasn’t applied. he cant afford to. we have being trying to find out what the procedure is for trying to get into the support group with little info so far. he was initially told he was fit for work, but on appeal after being told he had won it, he then finds hes only won it until they can get him fit for work.and was in the WRAG group.

  4. November 20, 2014 9:11 pm

    Reblogged this on Christopher John Ball.

  5. November 21, 2014 12:01 am

    Reblogged this on Britain Isn't Eating.

  6. November 22, 2014 2:09 am

    The chronic sick may indeed be facing not only tax on benefit
    but also its reduction, when it is being replaced by Universal Credit and could be lost,
    even without all the threat of benefit sanctions that are reaching nearly a million a year,
    with nearly a million referrals to food banks (Trussell Trust, who are themselves but half of all food banks).

    The chronic sick can be 60 and over because of the rise of the retirement age, so liable for cuts to benefit, sanctions, loss and needing to go to food bank equally as all ages, when it is not universal in gaining a food voucher if not on benefit.

    Men born from 1951 and women from 1953 may indeed end up on benefit for life,
    from NIL STATE PENSION FOR LIFE coming with the flat rate pension,
    with the bulk of the rest on even less state pension than now
    as the lowest rate of all rich nations bar poor Mexico.
    https://you.38degrees.org.uk/petitions/state-pension-at-60-now

    So far the only party with a new and unique solution to all the pain of assessments and tribunals, adding to the huge stress of fearing starvation is The Greens in their
    2015 manifesto brought about in their Spring Conference this year:

    – universal, automatic Citizen Income, non-withdrawable
    to level of basic tax allowance, replacing all the cruel benefits regime
    and not requiring you to be actively seeking work or if you are in work already.

    – Bettered State Pension, with a full state pension to all citizens,
    leaving no citizen with no food money for life in old age as is coming to huge numbers with the flat rate pension.
    https://you.38degrees.org.uk/petitions/state-pension-at-60-now

    You might ask The Greens why this life-saving set of measures is not in every town on billboards to offer hope where now there is little or none?

  7. September 15, 2015 11:38 am

    Reblogged this on lawrencerowntree.

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