Two regulations ‘could hold the key to winning ESA appeals’


Two little-known government regulations could hold the key to helping thousands of sick and disabled people who have been unfairly found “fit for work”, according to a new campaign.

The grassroots, user-led group Black Triangle believes that persuading GPs to write letters to tribunals quoting one of two employment and support allowance (ESA) regulations could make it much easier for claimants to win appeals against the results of their work capability assessments (WCA).

Black Triangle says thousands of people are currently at risk of serious damage to their health because – as a result of their WCA – they are being forced to carry out work or work-related activity that they are not well enough to do.

Black Triangle believes that persuading GPs to refer to regulations 29 or 35 – which date back to 2008 – could even save lives.

The two regulations state that a claimant should not be found fit for work (regulation 29), or placed in the work-related activity group (regulation 35), if such a decision would pose “a substantial risk” to their “mental or physical health”.

Black Triangle is calling on disabled people preparing for their appeal to ask their GP to fill in the gaps in a short draft letter.

The letter states that the physical or mental health of the patient would “more likely than not” be harmed if they were found fit for work, or even found to have “limited capability for work” (the work-related activity group, for those expected to move gradually towards the job market).

Dr Stephen Carty, medical adviser to Black Triangle, drafted the letter after consulting with a barrister and senior figures with links to the British Medical Association (BMA).

He has already used the letter to help five patients who were facing appeals.

He said: “All I did in a 10-minute consultation was fill out on one side of an A4 letter the diagnoses and how the ESA decision posed a risk to the patient’s physical or mental health.”

He said the process was “very easy, very quick and very effective”, and that two of the five patients had told him that submitting the letter had led to the decision being “overturned immediately without the tribunal even taking place”.

Black Triangle believes that if a disabled person was found fit for work, despite one of the new letters being submitted by their GP, and then experienced a deterioration in their condition, the Department for Work and Pensions (DWP) could be liable for damages.

Carty also believes that the letters could offer legal protection for GPs, who could otherwise be sued if they failed to alert the DWP to the risk of their patient’s health deteriorating if found fit for work.

A spokeswoman for the Medical Defence Union, which offers GPs medical legal advice and insurance against being sued for clinical negligence, said the campaign was “not something we can comment on as it is [in]relation to a doctor’s clinical judgment which is not something we have a view on as it is up to each individual clinician”.

Carty, who works as a GP in Leith, on the edge of Edinburgh, was behind the campaign that led to the BMA calling for the WCA to be scrapped and replaced with a “rigorous and safe system that does not cause avoidable harm”.

He has previously joined disabled activists in pointing to links between the WCA and relapses, episodes of self-harm and even suicides and other deaths among those who have been assessed.

Only last week, the latest report by the WeAreSpartacus campaign group produced extensive evidence that disabled people were still experiencing humiliating and inappropriate treatment because of the failings embedded within the WCA system.

20 November 2012