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Summary

The claimant was in receipt of UC. On 17 April 2021, the claimant reported in her online journal that she had a health condition that affected her capacity for work and that she was a carer for her disabled daughter. The claimant asked if she needed to submit a ‘fit note’ but received no reply. She supplied a fit note on 24 February 2022, dated 15 April 2021. Having had a work capability assessment (WCA) applied and been assessed as having limited capability for work-related activity (LCWRA), it was decided that the three-month ‘relevant period’ before the LCWRA element could be included in the award started on 24 February – ie, the date she supplied the fit note. On appeal, the First-tier Tribunal upheld that decision, holding that the relevant rule (at regulation 28 of the Universal Credit Regulations 2013 No.376) provided that the relevant period only began when the fit note was provided.

Judge Church allowed the claimant’s further appeal and substituted a decision that the relevant period in this case began on 17 April 2021 – ie, the date on which the claimant reported her health problems on her online journal but received no response to her query about submitting a fit note. The tribunal had erred in its interpretation of the meaning of regulation 28. In fact, that did not preclude a self-certification from starting the three-month period. Further, given the fact that the DWP had not responded to the claimant’s query about a fit note, it was unreasonable (in terms of the legislation) to require her to have done so at that point, and, together with the later submission of a ‘backdated’ fit note, the claimant had bridged the gap between her report on the journal and the actual date on which the fit note was submitted.

Regulation 28 was the relevant rule for the relevant period. That provides that (except in cases concerning claimants earning above a certain threshold) the relevant period begins on ‘the first day on which the claimant provides evidence’ of their limited capability for work, ‘in accordance with the Medical Evidence Regulations’. Those regulations are the Social Security (Medical Evidence) Regulations 1976 No.615. Regulation 2 of those regulations provides by default that the medical evidence required is, in effect, a fit note. But an exception to that at subparagraph (1A) is that where it would be ‘unreasonable’ to require a fit note, the person shall provide ‘such other evidence as may be sufficient’. Another exception was at regulation 5, which provides for self-certification for the first seven days of sickness. The judge could see ‘no reason’ why the claimant’s report in her journal on 17 April should not be self-certification for the first seven days of her sickness (paragraph 22). Further, given that the claimant reported her sickness timeously and that her query about submitting a fit note was unanswered it was ‘unreasonable’ (per regulation 2(1A) of the Medical Evidence Regulations) to require her to provide a fit note for as long as that query went unanswered. The judge was satisfised that the claimant’s report on her journal together with the later submission of a backdated fit note amounted to ‘such other evidence as may be sufficient’, with the backdated fit note serving to ‘bridge the gap’ back to her initial self-certification (paragraph 26).

Comment from CPAG

It is common for the default requirement for a fit note to start the relevant period to be mistaken for an absolute rule with no exceptions. This decision is clear authority that such an interpretation is wrong. 

Thanks to Lee Kempson, Welfare Rights Officer at City of Wolverhampton Council and the claimant’s representative, for sending us this decision.