Sabrina Dubash examines the considerations around determining ‘good cause/reason’ for not attending a medical assessment, highlighted by recent caselaw.
Failure to attend an official medical assessment for employment and support allowance (ESA), personal independence payment (PIP) or universal credit (UC) can result in loss or disallowance of benefit. In challenging this decision, claimants may need to prove they have ‘good cause’ (for ESA), ‘good cause’ or ‘good reason’ (for UC and PIP) for not attending.
The question
What is a ‘good cause/reason’ for not attending a medical assessment? The precise answer is not detailed within legislation, which gives rise to the wide scope and vast range of considerations that could merit a ‘good cause/reason’.
Ultimately, what constitutes ‘good cause’ or ‘good reason’ is based upon a reasonableness test. Therefore, if your client’s claim has ceased due to failure to attend a medical assessment, it’s important to know what considerations should be made and what information is relevant in determining ‘good reason’ and ‘good cause’ to strengthen any potential challenges in reconsideration and appeal.
What do the regulations say?
The Employment and Support Allowance Regulations 2008
1Reg 23 Employment and Support Allowance Regulations 2008, No.794 (‘ESA Regulations’) and the Universal Credit Regulations 2013
2Reg 44(2) Universal Credit Regulations 2013, No.376(UC Regulations) both state that where a claimant without ‘good cause’ (re ESA) or ‘good reason’ (re UC) fails to attend a work capability assessment, the claimant will be
treated as not having limited capability for work.
The Social Security (Personal Independence Payment) Regulations 2013
3Reg 9(2) Social Security (Personal Independence Payment) Regulations 2013, No.377 state that where a claimant fails to show ‘good reason’ for not participating or attending then a ‘negative determination must be made…’.
Both terms of ‘good cause’ and ‘good reason’ have the same meaning.
4S v Secretary of State for Work and Pensions [2017] UKUT 477 (AAC) The ESA Regulations provide that, in determining whether there was ‘good cause’ for the failure to attend, matters to be considered include:
‘(a) whether the claimant was outside Great Britain at the relevant time;
(b)the claimant’s state of health at the relevant time; and
(c)the nature of any disability the claimant has.’
5Reg 24 Employment and Support Allowance Regulations 2008, No.794It is important to remember that this is not a comprehensive list; the factors listed above are just some considerations in determining ‘good reason’ and not all.
This analysis of reasonableness on this issue has been highlighted in recent Upper Tribunal decisions on the issue of ‘good cause’ in ESA cases.
The answer: ‘It all depends...’
Judge Church allowed the appeal in SA v SSWP (ESA) [2019] UKUT 118 (AAC), stating that the DWP had misunderstood and misapplied the test under regulation 23 of the ESA Regulations. This case concerned a claimant who suffers from wholly unpredictable epileptic seizures. He was unable to attend his medical assessment due to suffering an epileptic seizure that day. The claimant had missed previous medical assessments in the past. The fact that the claimant had a seizure on the day of the assessment was not disputed.
The Secretary of State opposed the appeal on grounds that previous advice to the claimant to request, and make arrangements for, a home assessment in order to satisfy the medical evidence requirement had not been taken. Therefore, his failure not to make advance plans for the assessment had shown no ‘good cause’.
Judge Church explained that regulation 24 of the ESA Regulations required a consideration of the claimant's health at the ‘relevant time’ in determining ‘good cause’. Therefore, the question to pose is: ‘what would a reasonable person do when faced with circumstances the claimant found him/herself in on the day in question...’ and not what steps should the claimant take in anticipation of experiencing an epileptic seizure.
Judge Church continued that it was not reasonable of the DWP to place an obligation upon claimants to plan in advance preparation of a medical assessment, when no obligation is placed within the ESA Regulations.
The focus upon the wording of ‘relevant time’ in regulation 24 of the ESA Regulations also highlights that, depending on the circumstances, it may be right to place little weight on the evidence of previously missed assessments.
The relevance of previous missed assessments in determining ‘good cause’ of a current failure to attend an assessment was placed before Judge Jacobs in JS v SSWP [2019] UKUT 303 (AAC). It was found that although previously missed assessments may ‘justify careful scrutiny of the current failure’, the claimant’s explanation of the current failure ‘will always be relevant’.
The DWP is entitled to consider the history of the previous missed assessments along with other considerations. However, ‘it all depends’ on the facts. Decision makers and tribunals who do take into account previous missed assessments need to take caution and explain how the relevance is rational, with points for and against the claimant.
In this case, it was decided that the First- tier Tribunal did not provide a comprehensive history of why the previous failings were relevant and why the claimant did not attend this present time. Due to the incomplete analysis, the tribunal had made an error in law.
What to do if you are challenging a 'no good reason' decision?
If you are assisting in challenging a decision to determine ‘good cause’ or ‘good reason’, it is advisable to thoroughly discuss the specifics of why your client could not attend that day. Remember that there is no comprehensive test and, as quoted by Judge Jacobs, ‘it all depends’ on the facts.
If the DWP places relevance upon previous missed assessments, an adviser’s role is to attempt to show how the absences could strengthen the claimant’s case rather than hinder it.
Establishing ‘good cause’ or ‘good reason’ is often a matter of persuading the decision maker or tribunal that your client behaved reasonably in the circumstances. Therefore, any points raised that concern the claimant’s state of health at the time of the assessment date and the nature of her/his disability (regulation 24 of the ESA Regulations) will be most pertinent.