Mandatory Reconsideration

Content warning: suicide, self harm, Department of Work and Pensions.

Featured image: Medical history form with pills and stethoscope. Credit:  phasinphoto.

Dear [name]

Your Mandatory Reconsideration Notice

You or someone who has the authority to act for you, asked us to look again at the decision we sent on [date].

We have taken into account all the information available.

We have not changed our decision.

An explanation of our Mandatory Reconsideration decision is set out below.

The reasons for this decision

Mandatory Reconsideration: Employment and Support Allowance. Limited Capability for Work Related Activity Group – Not Revised.

I am unable to revise the decision of [date] placing you in the Work Related Activity Group (WRAG). This is because you do not meet any of the criteria for the Support Group (SG) (Employment and Support Allowance regulation – Schedule 3).

You requested a Mandatory Reconsideration which we received on the [date].

You were found to have Limited Capability for Work (LCW) under Regulation 29. This Regulation allowed the original Decision Maker to award Employment and Support Allowance as they considered either you are suffering from a life threatening condition which is uncontrollable or uncontrolled or if there would be a substantial risk to your health or that of others if you were found not to have Limited Capability for Work.

The Healthcare Professional (HCP) and the original Decision Maker (DM) went on to consider the activities of Schedule 3 and Regulation 35 but found you did not meet the criteria and that you did not have Limited Capability for Work Related Activity (LCWRA).

I have considered the available evidence and agree that you have LCW undr Regulation 29 and that you do not have LCWRA under any of the Schedule 3 activities.

I have also re-considered Regulation 35 of the ESA regulations. We accept that you are not fit for work at present. The issue is whether you can do Work Related Activity (WRA).

The purpose of WRA is to address an identified barrier to becoming work ready that is considered a pre-requisite to a person moving towards or finding work, if or when they become capable. WRA must also be reasonable, having regard for your circumstances, in particular your health or medical condition. WRA does not require you to seek, apply for or undertake work.

There are different types of WRA that may be available to you. I have to consider what type you might reasonably be expected to undertake. An example of the least demanding type of WRA could be to establish daily routines. Having considered the activities you stated you are able to complete in a typical day and the other information provided at your medical assessment, I consider the evidence suggests you would be able to complete this task without risk to your health or the health of anyone else and requesting you to do so would not be unreasonable.

The most demanding type of WRA could be consider voluntary work, this can be as little as one hour a week (do-it.org). Due to your health conditions this would be the most demanding activity, however, I consider with reasonable adjustments that any risk to your health could be alleviated.

Due to the way information is recorded, it is not possible to be certain that all the WRA was available in your area on [date]; however, the types of WRA have not changed significantly since the introduction of the requirement to undertake WRA on 01-Jun-2011.

The question is not whether you could undertake any WRA, nor whether you would be sanctioned inappropriately. Being unable to carry out an activity does not mean that there would be a risk to anyone’s health if you are required to do so. A substantial risk to health must be identified.

The health care professional reported that you have no history of suicide attempts. You have self harmed by cutting or biting yourself, last time being a couple of months ago. You experience on-going low thoughts of hanging yourself suggesting that if found to be fit for work at this time, there may be a substantial risk to your health at this time. Although you do have the risk factors detailed above you are on monthly prescriptions, you are engaging with services, no issues with behaviour noted, no hospital admissions due to mental health condition. You are currently living in a house share. You have good friend support. You have reasonable day to day function, you are able to use public transport, a computer and a mobile phone. The health care priofessional reported that it seems unlikely that appropriately tailored work related activity would cause a substantial risk to your mental health.

Whilst it is not in doubt that you have health conditions that affect your day to day living, these do not limit your functional abilities sufficiently for you to have LCWRA. Taking into consideration the activities that you are able to do in your typical dau it would be reasonable for you to undertake some form of WRA as described above. There is no evidnce that finding you capable of WRA would place you at substantial risk in the context of the journey to and from the Jobcentre (or other provider) or whilst there. Also there is no evidence that you would put anyone else at substantial risk. I have concluded that this Regulation does not apply in your case.

The Law

Social Security (Claims and Payments) Regulations 1987, reg 17(4)
Social Security (Employment and Support Allowance) Regulations 2008, regs 19, 29, 34 and 35
Social Security Act 1998 section 9
Social Security and Child Support (Decision and Appeals) Regulations 1999 reg 3 & reg 3ZA
Social Security (Credits) Regulation 1975 reg 8b
Welfare Reform Act 2007, sections 1, 2, Part 2 Schedule 1 (ESA IR)

If you want to know more information about this decision, please contact us on the phone number or address at the top of this letter.

Yours sincerely

ESA Decision Maker

Ok, I’ve been stewing over this one for about a week. Finally found the emotional strength to write about this. So… I don’t meet the criteria, ok, that’s not the end of the world. There are criteria, I don’t meet them. I can live with that. My beef is with this following section.

The question is not whether you could undertake any WRA, nor whether you would be sanctioned inappropriately. Being unable to carry out an activity does not mean that there would be a risk to anyone’s health if you are required to do so. A substantial risk to health must be identified.

Right, so they don’t consider that being required to do an activity I’m incapable of doing would pose a health risk to anyone. After acknowledging that I have multiple mental illnesses, they don’t consider being asked to perform an impossible task to be a health risk? I have informed them, repeatedly, that the trigger for my depression and my suicidal ideation is feeling that I have no choice but to do something I can’t do.

  • They can request that I do a thing that I’m incapable of doing
  • They can take away the money I need to live if I don’t do that thing
  • They have been informed that this sort of situation is my exact trigger for worsening mental health
  • They do not believe that this situation poses a substantial risk to my health.

I would say there aren’t words to describe how I feel about this, but that would be a lie. There are words, they’re just not ones I would use in polite company.

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