ESA : The Regulations 29 & 35

[Mdaisy]

Hello Members,

I thought it might be beneficial to discuss the above regulations in relation to ESA once again, for our newer members who may benefit from this information.

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

Regulation 35

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.

(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

legislation.gov.uk/uksi/200...

There are exceptional circumstances which can be used to support your claim when symptoms like pain, fatigue, depression and any symptoms which would worsen as a result of work and could lead to a serious deterioration in health or a relapse.

The main body of the regulations above is;

Exceptional Circumstances, as it states that .this applies if 'The claimant suffers from some specific disease or bodily or mental function,and by reason 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

Therefore if any WRAG group activity that will lead to a deterioration in your condition either mentally or physically under Regulation 35 you should therefore not be placed in WRAG, if you can prove that your condition will suffer as a result.

I think many of us could say that our condition would worsen and potentially relapse, so it is helpful information to know.

I hope this helps, don't forget the many organisations you can ring for more advice most listed at the end of the post linked below;

healthunlocked.com/fibromya...

Also anyone who needs benefit information, please do email the FMAUK Benefits Advisor. All contact information can be found via the link below;

healthunlocked.com/fibromya...

Best Wishes

Emma

[Hidden]

I have been receiving ESA for just over 2 years, and I have recently been moved from the Working Links programme to the WRAG. With Working Links, all I had was fortnightly phone assessments because I suffer from fibromyalgia, depression, and panic attacks. I can't leave the house alone, yet I've been told by the job centre that I have to attend a six week course, and if I refuse, I could be sanctioned and lose some of my ESA. I failed to get the points needed to be placed in the support group, and when I appealed by telephone, I was refused again. I am in such a state, I can't even face doing the course, let alone go out to work. I'm in constant pain with the fibromyalgia, and have panic attacks daily. I live alone, so when I had my ATOS health check, I had to say that I can get myself washed, dressed, etc....because I have no choice, but it's so painful. Sometimes I'm housebound for days on end because I can't get out of the house. Please can you advise me how I can get placed in the support group, and if there are any other benefits I could claim as well as ESA? I'm not good at filling in forms etc so would really appreciate any help. Thank you

[lou60 in reply to Hidden]

Although I have not claimed on my behalf, several years ago we had to put in a claim for my Husband, I have to say that when I saw the size of the form pages and pages to fill in I just went blank, a friend advised us about CAB and they took over from me. My question is, how on earth does everyone cope with all this, it is almost like you have to beg for help from a system we paid into, I realise there is only a certain amount of lolly to go round however you would think the word of Drs and the many experts we see would be enough for more speedy outcomes than people are receiving now. To have to do all this when you have this debilitating illness, well I think its an outrage how they treat people. I left work due to Fibro around 12 years ago then my Husband had a stroke after the loss of our Son and knowing all this we still had to go to every meeting I wheeled my Husband around his workplace with occ health lady and only then was it decided that he was unfit for work. Sorry for ranting done now.XX LOU

[lou60 in reply to lou60]

Neglected to say I would have sunk without trace without the great advice on this Forum and I thakyou all for that. XX Lou

[Mandypandy1969 in reply to lou60]

You can what you call rant anytime. we all need to express how we feel. gentle hugs. xxx

[Piggysqueak in reply to Hidden]

Hello Dianne 88

I can't believe you are being put through this please contact CAB ASAP

can your GP help if you have a flare because of the stress you won't be able to go there must be something in place for this surely . Mind one of the GP at my surgery does not believe in fibro or my other condition he think I should stop drinking alcohol ( which I don't i have nt ever been big drinker and I have never had alcohol for maybe 15 years ) they always put that I'm self caring but I'm not they have no idea I don't know how to make them change but I do like my GP who is better but sadly I'm at the best surgery in my area

Good luck

Best wishes

Squeak xxxx

Ps if you do this course they won't see your pain and push your harder as they will think you have achieved it I'm sure you will be looked after by CAB xxx

[Mandypandy1969 in reply to Piggysqueak]

I don't have cab I can go to, it's an advice shop and the woman was awful to me and I walked out in tears. people sat in there and and this woman said"it wasn't me". it was as I was upset in the office. Awful. she tried ringing me and in the end I stopped answering the calls because she upset me to the point of tears. xx

[TheAuthor]

Thank you so much for this Emma, I am certain it will help many of the members.

Take care

Ken x

[Piggysqueak]

Emma

I can not thank you enough for all the help and advice you provide for us member

We would be lost without you

Thank you so much I hope you realise how much this means to me and I'm sure others that have to battle with ESA DLA and now dreaded PIP

Best wishes squeak xxxx

[Nelilove]

Wow, this is great information. Thank you so very much. I've been on ESA for a couple of years or more and after an atos assessment in my home I was put in the support group. I've also recently been diagnosed with p.t.s.d, I think I might be entitled to the p.ip benefit but find it all so over whelming so I'm trying to find help. I tried for d.la about 4 years ago and got knocked back and I couldn't cope with the appeals process. Thank you neli x

[Mandypandy1969]

Thankyou Emma. I suffer with anger problems. I don't do people as I am easily aggravated by crowds/anyone brushes past me, I get angry and can shout something to the person which can be dangerous this day and age. when I worked, if anyone annoyed me, I would be verbal, I got took into a room and warned by the boss to calm my temper. I have had anger issues all my life. Just giving a couple of examples. always been an angry miserable person I am sorry to say. I have been through a lot of trauma in my life like a lot of others have with various illnesses. x

[Mandypandy1969]

Is it in my interest to send something to the court Emma? xx

[Mdaisy in reply to Mandypandy1969]

Hi Mandy

I gather from your comment that your next stage is a tribunal. If so, yes it could be worth providing evidence that due to any work related activity it will exacerbate a condition or worsen any physical or mental illness quoting the regulation in question. I think you should consider discussing this with the FMAUK Benefits Advisor. I am not sure anyone would cite these with an initial claim but as you are at the tribunal stage and think you can make use of this then I would definitely consider it.

I would always take advice from people like the FMAUK Benefits Advisor or other professionals from charities etc before using this so you can use it effectively and in the right way.

Hope this helps

Emma

[Mandypandy1969]

Thankyou so much Emma. I will do so in Monday. I am so stressed and anxious as you may have guessed. my tribunal is 6th September and any further evidence needs to be to the court 2 weeks prior to the hearing. stress levels are getting so high along with anxiety and depression.. to top it off I have applied for pip for my first time and was annoyed with the assessor trying to twist things and the physical part had nothing to do with showing what us fibro suffers suffer with in reaching, walking etc. I did get angry and told her what I thought when she asked if I had any questions. I felt so annoyed. sorry to rant but feeling in a pickle. xx

[Bfull]

thank you for the very useful information.