Getting GP ‘fit-notes’ after being found fit-for-work by a Work Capability Assessment – #DoNotConsent

Caution: You may wish to seek independent support from an Advice Agency or Law Centre before acting on any of the consent based suggestions below.

When Employment Support Allowance (ESA) or Universal Credit claimants are required to undertake a Work Capability Assessment (WCA) and found fit for work (FFW), their GP or Doctor treating them is usually sent a letter, known as an ESA65B (pdf) [1], informing the GP/Dr that they no longer need to issue ‘fit-notes’ [2] for “ESA purposes”.

Unfortunately receipt of the ESA65B letter often results in GPs refusing to continue issuing ‘fit-notes’ [3], even when they should be issued when the claimant has requested a Mandatory Reconsideration (MR) of its FFW decision or appealing to an independent Tribunal against after an MR, or their health condition or disability gets significantly worse or they have a new medical condition. [4] Or when needed to ensure a Jobcentre Work ‘Coach’ cannot impose unreasonable work-related conditions on an ESA[4], Universal Credit (UC) [5] or Jobseekers Allowance (JSAc) (contribution based) [6] claimant. (See item ‘5. Benefit Sanctions and why having ‘fit notes’ before and after being found ‘fit for work’ are very important’ below)

Tribunal appeals found in favour of the customer:
ESA at 74%
Ministry of Justice – ‘Tribunals and gender recognition certificate statistics quarterly: October to December 2018‘ – 14 March 2019

If your GP/Dr did get an ESA65B letter and you are asking the DWP for a Mandatory Reconsideration or appealing to a Tribunal against the FFW decision, or your health condition or disability gets worse or you have a new medical condition or disability. You could provide a copy of or send your GP or GP practice links to ‘A short guide to the benefit system for general practitioners‘ and this letter of 5 April 2019 as they advise GPs when they should to continue issuing ‘fit-notes’.

Comment: The ‘guide‘ does not mention Mandatory Reconsideration or issuing ‘fit-notes’ due to “a new disability” but the letter does. The letter also tells GPs to issue ‘fit-notes’ when “their patient’s condition gets worse”, whereas the ‘guide‘ refers to issuing ‘fit-notes’ when a “condition worsens significantly”. Use of the word “significantly” and absence in the ‘guide‘ of any reference to “a new disability” means it may well be best to share the letter with a GP or GP practice and not the ‘guide‘.

“GPs don’t have to provide fit notes where their patient has been found fit for work following a Work Capability Assessment (WCA) unless:

  • their patient’s condition gets worse
  • their patient develops a new disability or health condition
  • their patient asks the GP for evidence for a reconsideration or appeal against a
    WCA decision” (emphasis added)

FOI reply: ‘Fit-for-Work ESA65B letter: Current and 2010 versions and claimant consent to send it to a Doctor/GP‘ – 5 April 2019

Related: Your GP refuses to issue ‘fit-notes’ after DWP says you are ‘fit-for-work’ – What can you do?

Claimants of UC and JSAc (or a combination thereof) and ESA claimants who migrate to UC [7], are required to accept and agree a Claimant Commitment (CC), [Check UC CC info] that outlines the entitlement conditions, work related activity, work search and work preparation requirements they accepted and the benefit sanctions that could apply for non compliance.

When a CC is drawn up with a Jobcentre Work ‘Coach’ (WC) the WC must take account of any ‘fit note’ a claimant provides and the WC is required to ensure the CC includes ‘reasonable adjustments‘ to ensure the CC does not have a detrimental affect on the claimants’ health and or disability or facilitates disability discrimination. You could also ask a support worker, community psychiatric nurse (CPN), psychologist, psychiatrist, or social worker to  write a letter for your ‘Coach’, saying why they consider your CC could be unreasonable.

#DoNotConsent: How to STOP the ESA65B letter going to your GP?

Check out Z2K #ScrapTheLetters campaign info and petition.

To continue getting ‘fit-notes’ after a FFW decision you can choose not to consent to your GP or any doctor treating you not getting the ESA65B letter by following the processes below. (Items 1 to 4) This can include the ‘fit-notes’ your GP/Dr could have stopped issuing on receipt of an ESA65B. The DWP says that when a claimant does not want the ESA65B letter sent to a GP or other Doctor, “the claim will be maintained clerically and the papers noted that the letter is not to be issued” [8]

1. Your ESA claim form
2. Your ESA50/UC50 questionnaire
3. Withdrawing consent when you did not do so on your ESA claim form (1.), during your UC claim or your ESA50/UC50 questionnaire (2.)
4. More from DPAC
5. Benefit Sanctions and why having ‘fit notes’ before and after being found ‘fit for work’ are very important

1. Your ESA claim form

On ‘Part 23: Other information‘ write:

I DO NOT agree to my doctor, or any doctor treating me, being informed about the Secretary of State’s determination on– limited capability for work–limited capability for work related activity, or– both.

My “I DO NOT agree” consent decision is being exercised under my Data Protection Act (2018) and General Data Protection Regulation rights.

Then on ‘Part 25: Declaration

Cross out or strike through the text:

“I agree to my doctor, or any doctor treating me, being informed about theSecretary of State’s determination on– limited capability for work–limited capability for work related activity, or– both.”

so it now looks like

̶I̶ ̶a̶g̶r̶e̶e̶ ̶t̶o̶ ̶m̶y̶ ̶d̶o̶c̶t̶o̶r̶,̶ ̶o̶r̶ ̶a̶n̶y̶ ̶d̶o̶c̶t̶o̶r̶ ̶t̶r̶e̶a̶t̶i̶n̶g̶ ̶m̶e̶,̶ ̶b̶e̶i̶n̶g̶ ̶i̶n̶f̶o̶r̶m̶e̶d̶ ̶a̶b̶o̶u̶t̶ ̶t̶h̶e̶S̶e̶c̶r̶e̶t̶a̶r̶y̶ ̶o̶f̶ ̶S̶t̶a̶t̶e̶’̶s̶ ̶d̶e̶t̶e̶r̶m̶i̶n̶a̶t̶i̶o̶n̶ ̶o̶n̶–̶ ̶l̶i̶m̶i̶t̶e̶d̶ ̶c̶a̶p̶a̶b̶i̶l̶i̶t̶y̶ ̶f̶o̶r̶ ̶w̶o̶r̶k̶–̶l̶i̶m̶i̶t̶e̶d̶ ̶c̶a̶p̶a̶b̶i̶l̶i̶t̶y̶ ̶f̶o̶r̶ ̶w̶o̶r̶k̶ ̶r̶e̶l̶a̶t̶e̶d̶ ̶a̶c̶t̶i̶v̶i̶t̶y̶,̶ ̶o̶r̶–̶ ̶b̶o̶t̶h̶.̶

2. Your ESA50 or UC50 questionnaire
(Capability for work questionnaire)

On page 21 under “Other information” add the statement:

I DO NOT agree to my doctor or any doctor treating me,
being informed about the Secretary of State’s
determination on– limited capability for work
– limited capability for work-related activity,
or– both

My “I DO NOT agree” consent decision is being exercised under my Data Protection Act (2018) and General Data Protection Regulation rights.

Then go to the “Declaration” section on page 22 and for the text:

“I agree to my doctor or any doctor treating me,
being informed about the Secretary of State’s determination on
– limited capability for work
– limited capability for work-related activity,
or– both”

Cross it out or strike through it, so it looks like:

̶”̶I̶ ̶a̶g̶r̶e̶e̶ ̶t̶o̶ ̶m̶y̶ ̶d̶o̶c̶t̶o̶r̶ ̶o̶r̶ ̶a̶n̶y̶ ̶d̶o̶c̶t̶o̶r̶ ̶t̶r̶e̶a̶t̶i̶n̶g̶ ̶m̶e̶,̶b̶e̶i̶n̶g̶ ̶i̶n̶f̶o̶r̶m̶e̶d̶ ̶
a̶b̶o̶u̶t̶ ̶t̶h̶e̶ ̶S̶e̶c̶r̶e̶t̶a̶r̶y̶ ̶o̶f̶ ̶S̶t̶a̶t̶e̶’̶s̶d̶e̶t̶e̶r̶m̶i̶n̶a̶t̶i̶o̶n̶ ̶o̶n̶–̶
̶l̶i̶m̶i̶t̶e̶d̶ ̶c̶a̶p̶a̶b̶i̶l̶i̶t̶y̶ ̶f̶o̶r̶ ̶w̶o̶r̶k̶–̶
̶l̶i̶m̶i̶t̶e̶d̶ ̶c̶a̶p̶a̶b̶i̶l̶i̶t̶y̶ ̶f̶o̶r̶ ̶w̶o̶r̶k̶-̶r̶e̶l̶a̶t̶e̶d̶ ̶a̶c̶t̶i̶v̶i̶t̶y̶,̶
̶o̶r̶–̶ ̶b̶o̶t̶h̶”̶

3. Withdrawing consent when you did not do so on your ESA claim form (1.), during your UC claim or your ESA50/UC50 questionnaire (2.)

See draft template letter for ideas and suggestions:
http://pastebin.com/kWZ6YNwY

DPAC has also created a proforma letter and more guidance.

If you are claiming UC you could also post a copy of any letter withdrawing consent onto your UC Journal (“Online conversations”) and ask your Work ‘Coach’ to confirm in writing that they have forwarded it to the relevant section of the DWP.

For JSA and UC you could write a letter withdrawing consent, as a complaint, by using the DWP’s online complaint system:

Make a complaint about
Jobseeker’s Allowance (JSA) or Universal Credit (UC)
https://makeacomplaint.dwp.gov.uk

You complaint could highlight that the ESA claim form and the ESA50/UC50 questionnaire did not offer you any positive opt-in consent, to sharing your WCA outcome (using the ESA65B letter) with your GP/Dr or tell you how you could withdraw consent. Saying the complaint will be resolved when the DWP to write back to you and confirm that the DWP will not inform ‘my doctor/GP or any doctor treating me, about the Sretary of State’s determination on– limited capability for work – limited capability for work-related activity, or– both, after undertaking a Work Capability Assessment’

“If a benefit claimant wishes to withdraw consent to inform a GP of the outcome of a Work Capability Assessment they need to write to the Benefit Centre that deals with their benefit claim”
https://www.whatdotheyknow.com/request/382955/response/938163/attach/html/3/236.pdf.html

4. More from from DPAC

YOU can prevent the DWP interfering in the patient/doctor’s relationship

5. Benefit Sanctions and why having ‘fit notes’ before and after being found ‘fit for work’ are very important

As mentioned above, having ‘fit notes’ before and after a Work Capability Assessment can be used to decide on the work-related conditions that apply to an ongoing UC or JSAc claim.

“Your work coach will take into account your health condition or disability when considering what to include in your Claimant Commitment.”
Universal Credit: Health conditions and disability guide – Accessed 3/4/19

The ‘Commentary on the government response to the Work and Pensions Commitee report on benefit sanctions, Feb 2019‘ (.docx) by David Webster, highlight the significance of the the ‘fit note’ concerns outlined above, to quote:

“The DWP says ‘Claimants who have been found ‘fit for work’ following a WCA continue to have their work related activities tailored to their individual needs and abilities, based on what the work coach considers to be reasonable in light of their health condition’. This recognises that it is possible for someone to be found ‘fit for work’ by the WCA and yet still have constraints on their work search or preparation activities. Claimants will presumably continue to have to obtain medical certificates [‘fit-notes’] to certify these. So while DWP says it does not want demand for ‘fit notes’ to overturn WCAs to place a burden on GPs, it does not appear to acknowledge that making sick or disabled people subject to conditionality will itself impose a similar burden. (emphasis added)

“The Committee called for exemption from conditionality and sanctions for those
assessed by a Work Capability Assessment (WCA) as having limited capability for
work (i.e. the equivalent of the ESA Work Related Activity Group); those with a
valid Fit Note saying they are unable to work; and UC claimants with a valid Fit
Note awaiting a WCA. In response, DWP says that in Summer 2019 it will
‘explore the possibility’ of a ‘Proof of Concept’ for a general policy, to be
developed in consultation with stakeholders, of not imposing conditionality on
claimants before their WCA or on those assessed as having limited capability for
work. But it says it will retain the discretion for work coaches to impose
conditionality in these cases. Qualified medical opinion contradicting a WCA
finding of fitness for work will be disregarded, although DWP says that medical
evidence on a new or deteriorating medical condition results in a switching off of
conditionality for 14 days, following which the work coach will be able to impose
work-related requirements. The difficulty about allowing work coaches to
override the professional medical opinion of a Fit Note or WCA is that they have no relevant qualifications (they get ‘up to 5 weeks’ training – para.57)”
View online without downloading.

Work and Pensions Commitee report on benefit sanctions, Feb 2019

Footnotes

[1] It is unclear what the equivalent of an ESA65B letter is for a Universal Credit claimant required to undertake a WCA this post will be updated once clarified.

[2] ‘Fit note: guidance for GPs’
https://www.gov.uk/government/publications/fit-note-guidance-for-gps

‘A short guide to the benefit system for general practitioners’ (page 9 extract)

Fit notes are required until DWP makes a decision on their claim if the patient remains unfit for work. Once DWP has made a decision on whether to award benefit, they will write to you and your patient to let you know.[Using the ESA65B letter]

No further fit notes will be required unless the patient wishes to appeal the decision.

If your patient’s appeal is unsuccessful, you should only issue further fit notes if their condition worsens significantly or they develop a new condition.”
(emphasis added)

[ Comment: A GP/Dr not getting an ESA65B letter will consider, to quote: “Fit notes are required until DWP makes a decision” and no decision is notified to a GP/Dr without an ESA66B ]

https://www.gov.uk/government/publications/a-short-guide-to-the-benefit-system-for-general-practitioners

[3]Netherley dad James Harrison DIES 10 months after DWP tell his GP not to write any more sick notes‘ (29 DEC 2016)  > Video: James Harrison’s furious daughter Abbie says Job Centre bosses interfered in the doctor-patient relationship 

DWP letter to GPs following ESA refusal (19 November 2010) http://www.rightsnet.org.uk/forums/viewthread/709/

Doctor Refusing to Provide Med Cert due to DWP Letter (15 December 2010) http://www.rightsnet.org.uk/forums/viewthread/824/

Where a client “fails” the WCA – does the DWP tell GPs not to issue a medical certificate? (7 July 2011) – https://www.whatdotheyknow.com/request/where_a_client_fails_the_wca_doe

[4] A short guide to the benefit system for general practitioners (page 9 extract)
Fit notes are required until DWP makes a decision on their claim if the patient remains unfit for work. Once DWP has made a decision on whether to award benefit, they will write to you and your patient to let you know.

[ Comment: If you do not consent to the DWP sending the fit-for-work ESA65B letter, your GP/Dr will not be informed the “DWP has made a decision” ]

No further fit notes will be required unless the patient wishes to appeal the decision.

If your patient’s appeal is unsuccessful, you should only issue further fit notes if their condition worsens significantly or they develop a new condition.”
(emphasis added)
https://www.gov.uk/government/publications/a-short-guide-to-the-benefit-system-for-general-practitioners

[4] “If it is decided at the work capability assessment that you do not have a limited capability for work-related activity, you will be put in the work-related activity group of claimants. You will get a lower rate of employment and support allowance (ESA) than if put in the support group. You will have to meet strict work-related conditions to continue getting the benefit in full. This will involve attending a series of work-focused interviews and possibly taking part in ‘work-related activity’. You cannot be required, as part of work-related activity, to apply for a job, do work or undergo medical treatment.”
https://www.disabilityrightsuk.org/work-related-activity-group

[5] Check you’re in the right Universal Credit work-related activity group
https://www.citizensadvice.org.uk/benefits/universal-credit/what-youll-need-to-do-on-universal-credit/claimant-commitment-what-group/

[6] How to claim ‘new style’ Jobseeker’s Allowance (JSA): step by step
https://www.gov.uk/how-to-claim-new-style-jsa

[7] Lines to take: ‘Employment and Support Allowance Claimant Commitment’
“The Department [DWP] committed to introducing the Claimant Commitment, why is this change not taking place now?
Legacy Employment and Support Allowance (ESA)claimants will have to accept a claimant commitment, as a condition of entitlement when they migrate onto Universal Credit, (some claimants will be exempt). We have decided to wait for this migration instead of introducing it for legacy ESA.”
https://www.whatdotheyknow.com/request/disability_rights_uk_and_the_pcs#incoming-1027650

[8] In reference to “the claim will be maintained clerically and the papers noted that the [ESA65B] letter is not to be issued“, this seems to be suggesting that the ESA claim will be maintained on a paper basis “clerically” and not electronically, which should mean the ESA65B will not be “automatically issued by the IT system“.

Acknowledgements

This post was developed after discussions with (hat tip for ‘Commentary on the government response to the Work and Pensions Commitee report on benefit sanctions, Feb 2019‘ (.docx) by David Webster) and et al, following on from ‘#DoNotConsent to a Doctor/GP being told your Work Capability Assessment decision… #StopTheLetter (ESA65B) Now‘  – Originally posted on February 16, 2017

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