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 the Employment and Support Allowance Regulations 2008, the Employment and Support Allowance Regulations 2013 and the Universal Credit Regulations 2013 (and the equivalent regulations in Northern Ireland).
For ESA regulation 23 of the 2008 ESA Regulations and regulation 35 of the 2013 ESA Regulations 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 ESA Regulations and regulation 36 of the 2013 ESA 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 2013 UC Regulations 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 regulation 24 of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008), and regulation 23 and regulation 24 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (SR.No.280/2008) (apply to income-related and old-style contributory ESA).
- Regulation 35 and regulation 36 of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013), and regulation 35 and regulation 36 of the Employment and Support Allowance Regulations (Northern Ireland) 2016 (SR.No.219/2016) (apply to new-style contributory ESA).
- Regulation 44 of the Universal Credit Regulations 2013 (SI.No.376/2013), and regulation 45 of the Universal Credit Regulations 2016 (SR.No.216/2016) (apply 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.
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Letter inviting claimant to work capability assessment medical examination did not impose legal requirement to attend / tribunal could not lawfully decide that claimant had failed to attend examination without seeing appointment letter
- [2020] UKUT 59 (AAC)
- CE/2126/2018
- PPE v Secretary of State for Work and Pensions (ESA)
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Relevance of previous failures when determining good cause for failure to attend a medical examination
- [2019] UKUT 303 (AAC)
- CE/1167/2019
- JS v Secretary of State for Work and Pensions (ESA)
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A judge sitting on their own is sufficient to decide an appeal which concerns failure to attend a medical examination
- [2017] UKUT 6 (AAC)
- CE/2223/2016
- CH v Secretary of State for Work and Pensions (ESA)
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Failure ‘to submit’ to a medical examination when a health care professional refuses to divulge details of their experience
- [2016] UKUT 208 (AAC)
- CE/62/2016
- JW v Secretary of State for Work and Pensions (ESA)
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Failure ‘to submit’ to a medical examination if a health care professional refuses to divulge their qualifications
- [2016] UKUT 207 (AAC)
- CE/288/2016
- JW v Secretary of State for Work and Pensions (ESA)
- Computer records showing ‘trigger dates’ can provide adequate evidence of posting
- [2016] UKUT 179 (AAC)
- CE/4448/2014
- DW v Secretary of State for Work and Pensions (ESA)
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Meaning of ‘submit to’ a medical examination / whether an examination continues after claimant has left the examination room
- [2016] UKUT 119 (AAC)
- CE/2611/2015
- PH v Secretary of State for Work and Pensions (ESA)