wcainfo

Medical examinations

Failure to comply with requirements relating to attending or submitting to a medical examination can lead to loss of entitlement. Claimants may be able to show 'good cause' or 'good reason' to avoid loss of entitlement.


Legislation

The rules for failure to attend or submit to a medical examination are in regulations.

For ESA, regulation 23 of the Employment and Support Allowance Regulations 2008 and regulation 35 of the Employment and Support Allowance Regulations 2013 provide -

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination … the claimant is to be treated as not having [limited capability for work / limited capability for work-related activity].

(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 seven days in advance; or (b) that the claimant agreed to accept a shorter period of notice whether given in writing or otherwise.

Regulation 24 of the 2008 regulations and regulation 36 of the 2013 regulations provide -

The matters to be taken into account in determining whether a claimant has good cause ... (failure to attend a medical examination to determine [limited capability for work / limited capability for work-related activity]) 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.

For universal credit, regulation 44 of the Universal Credit Regulations 2013 provides -

(2) Where a claimant who is called … to attend a medical examination fails without a good reason to attend or submit to the examination, the claimant is to be treated as not having limited capability for work or, as the case may be, for work and work-related activity.

(3) But paragraph (2) does not apply unless - (a) notice of the date, time and place of the examination was given to the claimant at least 7 days in advance; or (b) notice was given less than 7 days in advance and the claimant agreed to accept it.

Sources:

  • Regulation 23 and 24 of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008) (applies to income-related and contributory ESA in a universal credit live service area).
  • Regulation 35 and 36 of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013) (applies to contributory ESA in a universal credit full service area).
  • Regulation 44 of the Universal Credit Regulations 2013 (SI.No.376/2013) (applies to universal credit).

Case law

Commentary:​ Incapacity benefit case law has established principles that apply equally to employment and support allowance. In R(IB) 1/01 Judge Rowland holds that once a medical examination has been cancelled, it is impossible for the claimant to fail to attend. R(IB) 2/01 provides a detailed guide on issues relating to the burden of proof for 'good cause', and non-receipt of documents. | Add commentary or suggest an edit.