An invitation to a health assessment must use language of a clear and unambiguous mandatory requirement to attend.
IG-C v. Department for Communities (ESA)  NI Com 39
The claimant claimed ESA due to needs arising from fibromyalgia. In February 2019, she was required to attend a health assessment, but did not attend. When the claimant did not respond to the Department’s request to explain her non-attendance, it decided that she had not shown good cause for her failure to attend. As a result, the Department decided that the claimant did not have limited capability for work and it superseded and disallowed her award of ESA. The claimant appealed to the tribunal, which disallowed her appeal. She appealed to the Social Security Commissioner.
The claimant’s appeal to the Social Security Commissioner focused on the language used in the letter inviting her to attend a health assessment.
The Employment and Support Allowance Regulations (NI) 2008 provide for a health assessment, known as a medical examination, as part of the ESA assessment process. The Regulations also provide for the consequences of a claimant failing to attend.
Regulations 23 and 24 state:
‘23 – (1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Department to attend for a medical examination.
(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned in paragraph (1), the claimant is to be treated as not having limited capability for work
(3) Paragraph (2) does not apply unless –
(a) written notice of the date, time and place for the examination was sent to the claimant at least 7 days in advance; or
(b) that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.
24 The matters to be taken into account in determining whether a claimant has good cause under regulation 22 or 23 include –
(a) whether the claimant was outside Northern Ireland 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.’
The language used in health assessment invitations was considered by the Commissioner in RS v. Department for Communities  NI Com 4, which concerned a health assessment for the purposes of PIP. In RS, the Commissioner referred to an Upper Tribunal decision: IR v. Secretary of State for Work and Pensions  UKUT 374. In that case, the Upper Tribunal decided that the letter inviting the claimant to a health assessment must use the language of clear and unambiguous mandatory requirement. The Commissioner also referred to PPE v. Secretary of State for Work and Pensions  UKUT 59 which decided that the tribunal file must contain a copy of the letter sent to the claimant or a standard form and evidence that a letter in that form had been generated by the computer system and dispatched.
In IG-C’s case, the standard letter of invitation to a health assessment included the following words:
‘We have arranged an appointment for you at: It is important that you attend. If you fail to attend your benefit may be affected.’
The Department conceded that the wording used in this letter did not impose a legal requirement to attend a health assessment.
The Commissioner agreed that the standard letter of invitation issued to the claimant did not use language necessary to impose a legal requirement to attend the health assessment.
At paragraph 25, the Commissioner stated:
‘…[R]egulation 23(2) makes it mandatory for the Department to decide that the claimant does not have limited capability for work where he or she fails to attend a medical examination without good cause. The letter inviting the claimant to the medical examination merely indicates that it is important to attend. It infers a discretionary consequence that ‘your benefit may be affected’. However, there is no discretion permitted to the Department in the circumstances. The letter therefore does not accurately spell out the serious legal consequences of non-attendance.’
The Commissioner decided that the tribunal had erred in law. He set aside the decision of the appeal tribunal and made the decision it should have made.
The Commissioner decided that the wording of the invitation letter to the claimant did not include clear and unambiguous language imposing a legal requirement on her to attend a health assessment. She could not, therefore, be treated as not having limited capability for work on the basis of her failure to do so.
For a full copy of the Judgment: click here