Concerning the DWP’s use of the misleading letter (ESA65B) it sends to GPs informing them of a Work Capability Assessment ‘fit for work’ decision and to stop issuing ‘fit-notes’, when in fact there are many reasons they should continue issuing ‘fit-notes’, the following action plan should be considered:
1. Scrap the ESA65B letter
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1.2 Compromise to scrapping/abolishing the letters, by them being replaced so they contain guidance on when GPs should continue issuing ‘fit notes’, specifically:
“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. ”
DWP FOI reply: ‘Fit-for-Work ESA65B letter: Current and 2010 versions and claimant consent to send it to a Doctor/GP‘ – April 5th, 2019
(see footnote 1)
2. Issue new guidance to GPs
The DWP’s guidance to GPs ‘A short guide to the benefit system for general practitioners‘ to be fully revised and a new page 9 section on continuing to issue ‘fit-notes’ to be added to any new letter (1.2), including when a ‘fit-note’ could be required when creating a Claimant Commitment. (see footnote 2)
3. Redesign forms so claimants can decline or withdraw consent for their GP being informed of any ‘fit for work’ decision.
For the Work capability questionnaire (ESA or UC) and the ESA claim form to be redesigned so claimants can clearly provide positive opt-in consent to Accept or Decline for their GP being informed of any a ‘fit for work’ decision.
But what can I do now?
 The ‘‘short guide to the benefit system for general practitioners‘‘ 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”.
 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 a ‘fit note’ for claimants found ‘fit for work’, losing any appeal and having to agree a new or revised Claimant Commitment as part of a new JSA or existing UC claim.
“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)”
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