New ESA regulations, Reg 29 medication

At present a person may obtain benefit under Reg 29 by proving that work or work-related activity would cause a substantial risk. The new Regulation amends existing regulation 29 so the definition of substantial risk in regulation 29(2)(b) excludes circumstances where the risk to health could be significantly reduced by reasonable adjustments being made in the workplace or by the claimant taking prescribed medication. Substantial risk to health “does not apply where the risk could be reduced by a significant amount by— (a) reasonable adjustments being made in the claimant’s workplace; or (b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.” This is made clear by the Explanatory Memorandum Regulation 29 (Substantial risk): Cause – As currently drafted there is a degree of ambiguity regarding the satisfaction of regulation 29. There have been examples where substantial risk test has been judged as being satisfied, but where that risk may have been greatly reduced either by a workplace adjustment or other intervention.

With this in mind my question is this: If I have indicated on my ESA50 that there would be a risk to me or someone else in several sections of the mental health test if I were found capable of work or work-related activity, I don’t understand how the DM may be able to use the new regulation regarding ‘prescribed medication’ against me for example, if I already take prescribed medication for my mental health conditions and indicated this on the ESA50 and there is still a risk also indicated on the ESA50 how will a DM dismiss my statements based on the above new regs? And what does ‘other intervention’ actually mean? What could be considered a reasonable adjustment/s or intervention concerning reducing the risk in terms of mental health? And how can they really consider a workplace, or reasonable adjustment, if a workplace does not exist in the first place?

Any thoughts would be appreciated.

phidgity wrote: At present a person may obtain benefit under Reg 29 by proving that work or work-related activity would cause a substantial risk. The new Regulation amends existing regulation 29 so the definition of substantial risk in regulation 29(2)(b) excludes circumstances where the risk to health could be significantly reduced by reasonable adjustments being made in the workplace or by the claimant taking prescribed medication. Substantial risk to health “does not apply where the risk could be reduced by a significant amount by— (a) reasonable adjustments being made in the claimant’s workplace; or (b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.” This is made clear by the Explanatory Memorandum Regulation 29 (Substantial risk): Cause – As currently drafted there is a degree of ambiguity regarding the satisfaction of regulation 29. There have been examples where substantial risk test has been judged as being satisfied, but where that risk may have been greatly reduced either by a workplace adjustment or other intervention.

With this in mind my question is this: If I have indicated on my ESA50 that there would be a risk to me or someone else in several sections of the mental health test if I were found capable of work or work-related activity, I don’t understand how the DM may be able to use the new regulation regarding ‘prescribed medication’ against me for example, if I already take prescribed medication for my mental health conditions and indicated this on the ESA50 and there is still a risk also indicated on the ESA50 how will a DM dismiss my statements based on the above new regs? And what does ‘other intervention’ actually mean? What could be considered a reasonable adjustment/s or intervention concerning reducing the risk in terms of mental health? And how can they really consider a workplace, or reasonable adjustment, if a workplace does not exist in the first place?

Any thoughts would be appreciated.

Hi p,

You have raised relevant arguments to how and why the DM is going to apply the ammended regulations.

There are many grey areas, and it would seem obvious that reasonable adjustments, and medication, etc, as referred to in your post, would be totally personal to an individual claimant.

We will have to wait and see how things develope.

bro58

Yes, so difficult to make sense of this. I have returned my ESA50 form (old version). I was aiming for the support group on exceptional circumstances, however, I did fill the form out as best I could in order to hopefully score enough points independently to exceptional circumstances criteria. Now with the change to Reg 29 in particular it is of concern to me. ATOS received ESA50 on 23/01/13 so I will be assessed under the new regs, however I didn't fill in the form with the new regs in mind so therefore I haven't addressed medication and reasonable adjustments in my evidence. I thought about sending further information to ATOS & DM specifically that covers medication and reasonable adjustment but really don't have a clue where to start because as you say it is all so unclear.

phidgity wrote: Yes, so difficult to make sense of this. I have returned my ESA50 form (old version). I was aiming for the support group on exceptional circumstances, however, I did fill the form out as best I could in order to hopefully score enough points independently to exceptional circumstances criteria. Now with the change to Reg 29 in particular it is of concern to me. ATOS received ESA50 on 23/01/13 so I will be assessed under the new regs, however I didn't fill in the form with the new regs in mind so therefore I haven't addressed medication and reasonable adjustments in my evidence. I thought about sending further information to ATOS & DM specifically that covers medication and reasonable adjustment but really don't have a clue where to start because as you say it is all so unclear.

Hi p,

You have already made a valid comment regarding medication :

"I already take prescribed medication for my mental health conditions and indicated this on the ESA50 and there is still a risk."

bro58