exceptional circumstances

prettypolly2560 wrote:

Hi y'all.

I always think that cases like these cry out for consideration as coming under the Exceptional Circumstances Regulations. I have to confess that as an IS/IB recipient, I don't know chapter and verse of these in relation to ESA, but I am sure they must exist.

The one I always latch on to is Regulation 27(b) of SI 1995/311 as amended (basically, part of the Incapacity Benefit Regulations). This states:

"...he 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 he were found capable of work."

I'm not sure if I've got the precise wording correct, but that is certainly the gist of it.

The killer here for some people is the "specific disease or bodily or mental disablement" bit; this requires a formal diagnosis, so if anyone hasn't got that, this regulation could not apply.

If, however, you DO have a formal diagnosis - mine is Asperger's Syndrome - then you can make a case for coming under this regulation (or the ESA equivalents).

Given the formal diagnosis, you would have to show that being found capable of work has had or would have a serious and adverse impact on your own health or that of another person, and that the cause of that serious and adverse impact was related to your formally diagnosed condition.

It seems fairly obvious to me on a common-sense basis that a formal diagnosis of ME meets the first test, more particularly if this condition is receiving some kind of active therapy under the NHS or otherwise.

If a health professional has stated that being faced with the "cliff face" of the JSA regime would have a serious and adverse effect on your health - which it already has, in this case - it would seem to me to be pretty much an open-and-shut case.

Obviously, face-to-face advice from a Welfare Rights professional is always helpful, but I believe that it might be in order to draw their attention to the Exceptional Circumstances Regulations for ESA.

I think you have a good case. Go for it!

DepressedDerek wrote:

Hi Prettypolly

For ESA, Exceptional Circumstances is now Regulation 29(2)(b) in SI 2008/794, but it means much the same thing.

I agree with you that far more appellants should state a case, as it must apply to many appellants. However applying the regulation is extremely complexed and even Upper Tribunal Judges argue over how it should be interpreted.

Here are just a few decisions regarding Exceptional Circumstances.


CSIB/223/2005
CIB/360/2007
CIB/143/2007 & R(IB) 2/09

Derek

Like Derek and Polly, I feel very strongly that as most of the exemptions that apply to IB do not feature in ESA, 'exceptional circumstances' should be applied more liberally. The rule should also be considered for vulnerable claimants who do not feel able to cope with attending a medical. I personally feel that doctors etc need to be made aware of this rule on the IB/ESA113 form etc.

For awhile now I have felt very strongly that crisis management needs to be built into the system.

I would appreciate anyone's thoughts or experience on these issues.

Best wishes

Mod edit: Hi Catherine, I think you used <code> instead of <quote> so I changed them, Derek

Catherine wrote:

prettypolly2560 wrote:

Hi y'all.

I always think that cases like these cry out for consideration as coming under the Exceptional Circumstances Regulations. I have to confess that as an IS/IB recipient, I don't know chapter and verse of these in relation to ESA, but I am sure they must exist.

The one I always latch on to is Regulation 27(b) of SI 1995/311 as amended (basically, part of the Incapacity Benefit Regulations). This states:

"...he 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 he were found capable of work."

I'm not sure if I've got the precise wording correct, but that is certainly the gist of it.

The killer here for some people is the "specific disease or bodily or mental disablement" bit; this requires a formal diagnosis, so if anyone hasn't got that, this regulation could not apply.

If, however, you DO have a formal diagnosis - mine is Asperger's Syndrome - then you can make a case for coming under this regulation (or the ESA equivalents).

Given the formal diagnosis, you would have to show that being found capable of work has had or would have a serious and adverse impact on your own health or that of another person, and that the cause of that serious and adverse impact was related to your formally diagnosed condition.

It seems fairly obvious to me on a common-sense basis that a formal diagnosis of ME meets the first test, more particularly if this condition is receiving some kind of active therapy under the NHS or otherwise.

If a health professional has stated that being faced with the "cliff face" of the JSA regime would have a serious and adverse effect on your health - which it already has, in this case - it would seem to me to be pretty much an open-and-shut case.

Obviously, face-to-face advice from a Welfare Rights professional is always helpful, but I believe that it might be in order to draw their attention to the Exceptional Circumstances Regulations for ESA.

I think you have a good case. Go for it!

DepressedDerek wrote:

Hi Prettypolly

For ESA, Exceptional Circumstances is now Regulation 29(2)(b) in SI 2008/794, but it means much the same thing.

I agree with you that far more appellants should state a case, as it must apply to many appellants. However applying the regulation is extremely complexed and even Upper Tribunal Judges argue over how it should be interpreted.

Here are just a few decisions regarding Exceptional Circumstances.


CSIB/223/2005
CIB/360/2007
CIB/143/2007 & R(IB) 2/09

Derek

Like Derek and Polly, I feel very strongly that as most of the exemptions that apply to IB do not feature in ESA, 'exceptional circumstances' should be applied more liberally. The rule should also be considered for vulnerable claimants who do not feel able to cope with attending a medical. I personally feel that doctors etc need to be made aware of this rule on the IB/ESA113 form etc.

For awhile now I have felt very strongly that crisis management needs to be built into the system.

I would appreciate anyone's thoughts or experience on these issues.

Best wishes

Mod edit: Hi Catherine, I think you used <code> instead of <quote> so I changed them, Derek

An interesting post playing devils advocate neither IMO are Exceptional Circumstances .... the asperger might get in the support group for other reasons ....... but not all would as some high function asperger hold down jobs.

With regards ME there is such a range of problems and of the amount that someone can manage there is no way DWP would or should put all with ME direct into support group, I can see people being put in at times ... and some for long periods of time but to write off all people as having the same problems and needs is wrong.

I disagree with your comment

"seems fairly obvious to me "

each case has to be looked at based on the facts and evidance

Its possible doing such a thing as just putting allin support group might do harm to some.


All that said the big problem is getting the DWP to look at all the facts and evidance and make the right decsion based on facts, not thewish to cut numbers.

...but not all would as some high function asperger hold down jobs....

indeed. actually it is a proven fact that Silicon Valley is populated by a very high number of people who have Aspergers, who work every hour god sends in their own little bubble to bring us IT as we know it today. I might add they often marry and have children with aspergers too.

nonsmoker2008 wrote:

...but not all would as some high function asperger hold down jobs....

indeed. actually it is a proven fact that Silicon Valley is populated by a very high number of people who have Aspergers, who work every hour god sends in their own little bubble to bring us IT as we know it today. I might add they often marry and have children with aspergers too.

where is your quote from ? you have snipped too much

Prettypolly's comment 'seems fairly obvious to me' was referring to the first test, that is, suffering from some specific disease or bodily or mental disablement.

I don't think it is necessary for this to be formally diagnosed. The same or similar test applies to the PCA and WCA. You only score points in these tests if you satisfy the descriptors as a result of your mental or physical disablement.

The 'substantial risk' part of the regulation is much harder to prove and it's interpretation has been the subject of much debate between Commissioners/UT Judges.

Generally, you have to show that there would be substantial risk of health to yourself or others, if you are found capable of work. This could mean both, the likelihood and severity of somebody's health worsening. It applies only to risk that arises as a result of being found capable of work (not necessarily from working) that would not otherwise arise. Tribunals are likely to focus on your journey to work and within the workplace itself, and also the nature of the work you have done before or would be expected to do.

With the new WCA becoming almost impossible to pass unless you are on a life-support machine (even that might not pass you), and the lack of any questions on the medical form to indicate that you satisfy exceptional circumstances, I think it's important for claimants to consider if they satisfy the test when making an application.

Dave wrote:

where is your quote from ? you have snipped too much

sorry, can't be titting around with quotes within quotes within quotes within quotes