esa appeal from wrag to support grou

hi my brother was put into the work related activity group, as he has a learning disability, I did the appeal for him. I argued that the DWP kept asking my brother to find his own evidence, my argument was that how can my brother find his own evidence when he does not have the mental capacity to do this as he cannot read and write. The DWP did not take into account that people with learning difficulties should be protected under the equality Act 2010. As he has a qualifying disability under this Act, and is a protective characteristic.

would it be possible to move my brother into the support group, and how would this be done. or should I leave things as they are and don't rock the boat.

Thank You

Steve. Bsc Hons Soc sci(open) Active senior status law student llb (hons).

Hi s,

Welcome !!

These are the most current SG Descriptors :

SG (LCWRA)Schedule 3 Descriptors

As Gordon advises he only has to fulfill one of the SG descriptors to qualify.

Here is ESA Reg 35 (Exceptional Circumstances Rule) :

ESA Reg 35 for entry to The SG (LCWRA)

PLUS Post 28/01/13 Amendment of :

(3) In regulation 35(1) (certain claimants to be treated as having limited capability for work-related activity)(6), for sub-paragraph (b) substitute—

“(b)the claimant is-

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii)likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii)recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity; or”.

From : www.legislation.gov.uk/uksi/2012/3096/regulation/4/made

Unless he qualifies for The SG under one of the other criteria of ESA Reg 35, you will looking to prove that he fulfills :

ESA Reg 35 (2) (a) and (b) in that :

"(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."

So you would have to show that there would be a "Substantial Risk" to the health of your brother or another person, if he remained in The WRAG, and was compelled to take part in WFI's/WRA.

As he is in The WRAG it has already been deemed that he has Limited Capability for Work. (LCW)

To be placed into The SG you must show that he also has Limited Capability for Work Related Activity (LCWRA) by qualifying as above.

In the first instance, they will look to see whether he qualifies under any of The SG Functional Descriptors.

If not, they should then consider whether he qualifies under ESA Reg 35.

With respect to ESA Reg 35, you would have to show how and why there would be a "Substantial Risk" to health, it is not enough to simply state it.

Also with respect to The SG Descriptors not only must you be able to carry out any of the activities for the majority of the time, repeatedly, reliably and safely, you must also be able to carry the activities out on the majority of occasions that you attempt them.

If not, you should be classed as not being able to carry them out at all :

ESA Reg 34. (2) Applicable to Support Group :

“A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor”

www.legislation.gov.uk/uksi/2008/794/regulation/34/made

bro58

Hi S,

One thing that should be pointed out is, that if your brother is in receipt of Contribution Based (CB) ESA only in the WRAG, then payment of CB ESA whilst not in The SG is limited to 365 days.

One should then be assessed to see whether their is entitlement to Income Related (IR) ESA.

If there is no entitlement to IR ESA payments of CB ESA would cease.

There is no such 365 days entitlement rule if any part of the ESA paid is IR ESA.

See :

12 Month Limit for ESA(CB)

From our : ESA FAQ’s

bro58