Social Security Case Law - Spring 2025

Headnote

A claimant who attends a WCA medical examination should receive a ‘clear and unambiguous’ warning of the consequences for failing to submit/engage with the assessment.

Background

The claimant had an ongoing claim for Employment and Support Allowance (ESA). The Department notified them in writing of their medical examination as part of the work capability assessment (WCA). At the start of the telephone assessment, the claimant informed the healthcare professional (HCP) that they planned to record the assessment. However, as it was not agreed in advance the HCP ended the call.

During the second attempt to complete the examination over the phone, the assessor ended the call because of the claimant’s aggressive manner and their insistence that their circumstances had ‘not changed’. The claimant was not fully engaging with the questions from the medical assessor and rather than provide them with detailed answers they continuously stated that their condition had not changed. The DWP concluded he had not properly submitted to the WCA and disallowed his ESA claim from 29 June 2021.

The claimant submitted an appeal to the First-tier Tribunal, but this was dismissed. The Tribunal found that the claimant’s behaviour amounted to a failure to submit to a medical examination without good cause. The claimant then submitted an appeal to the Upper Tribunal.

On further appeal, the Upper Tribunal considered whether SB had genuinely refused to submit to the assessment and, crucially, whether he was clearly told that failing to submit (as opposed to failing to attend) could result in his ESA being stopped.

Legal Issue

The Upper Tribunal was asked to determine:

• Whether, by repeatedly stating that nothing had changed, SB had effectively refused to co-operate with the WCA by failing to submit to an examination.
• Whether the DWP’s notification was sufficiently clear and unambiguous about the consequences of failing to submit to the assessment (not merely failing to attend).

Decision

The Upper Tribunal agreed with the First-Tier Tribunal (FTT) that the appellant had not meaningfully participated and therefore had they had failed to submit to a proper assessment.

However, the Tribunal ruled that the FTT had erred in law as their warning as to the consequences of non-compliance were not of ‘crystal clarity’, both within the Departments’ notification letter and verbal warning to the claimant that failing to submit to the assessment could have consequences for non-compliance. This argument was supported by the Secretary of State’s representative who submitted that the FTT erred in law by failing adequately to consider proper warning had been given for any failure to submit to an examination and that the decision cannot be correct given the absence of evidence of a ‘clear and unambiguous warning’.

The appeal was allowed, the First-tier Tribunal’s decision was set aside, and the SSWP’s disallowance decision was also set aside.

“While the Appellant did not co-operate, and so did not truly submit to the medical examination, the notice provided by the Department was not ‘sufficiently clear and unambiguous’ as to the consequences of such a failure. This omission undermines the disallowance.”

Relevant Legislation

• Employment and Support Allowance Regulations 2008, Regs. 23 & 24

Relevant Case Law

• PPE v Secretary of State for Work and Pensions (ESA) [2020] UKUT 59 (AAC)
• PH v Secretary of State for Work and Pensions (ESA) [2016] UKUT 119 (AAC)
• [2007] NISSCSC C1/07-08(IB)
• CIB/849/2001
• CIB/2011/2001
• CH v Secretary of State for Work and Pensions (ESA) [2017] UKUT 6 (AAC)
• Adams v Secretary of State for Work and Pensions and Green (CSM) [2017] UKUT 9 (AAC), [2017] AACR 28