Fit up?

Issue 215 (April 2010)

Martin Williams examines the new 'fit note' and considers whether or not it will really change anything for benefit claimants.

Introduction

From 6th April 2010, the way in which doctors certify people as being 'incapable of work' or having 'limited capability for work' for benefit purposes is changing.

The Social Security (Medical Evidence) and Statutory Sick Pay (Medical Evidence) (Amendment) Regulations 2010 (SI 2010 No. 317) amend the rules1which specify the format of sickness certification required for benefit purposes.

Government press releases have referred to the changes as replacing the 'sick note' with the 'fit note'.

Background

Where entitlement to a benefit depends on a claimant being incapable of work or having limited capability for work, it is a condition of entitlement that the claimant provides evidence by means of a doctor's statement on a prescribed form until the DWP carries out an assessment (either the personal or work capability assessment). Such evidence is required in respect of each day of incapacity / limited capability for work, (although a claimant can "self certify" for the first 7 days).2

Where it is unreasonable to expect the claimant to provide a certificate, other evidence can be provided which is sufficient to establish incapacity / limited capability.3

Under the old rules, the certificates required were the Med 3 or Med 5 which included a statement by the doctor that a person should refrain from work and a diagnosis of the condition causing this.

The Government has replaced the Med 3 and Med 5 with a single revised certificate which requires doctors to certify that a person is not fit for work, or 'may be fit for work' taking into account specified advice, with the agreement of the employer. This is meant to help people back to work by helping employers to consider whether they can make any necessary changes to facilitate the patient's return to work.

The new rules

The new rules prescribe a new form of certificate (Med 3) which gives the doctor the option of either stating that a patient is not fit for work because of a stated condition, or 'may be fit for work' taking into account specified advice. In the latter case, the doctor must complete a box giving comments including information on the functional effects of the patient's conditions. The box also allows the doctor to tick up to 4 boxes representing common approaches to a return to work. They are 'a phased return to work', 'amended duties', 'altered hours', and 'workplace adaptations'. The information is designed to assist patients and their employers to plan for a return to work. It is not binding on employers, however, and it is not mandatory for employees and employees to discuss the information and options. Where the advice does not result in a return to work, the DWP's guidance to doctors states that the patient '…will be treated as if you had advised that they were not fit for work'.4

The doctor is also required to specify for how long the patient is not fit for work or may be fit for work. During the first six months from the date of assessment, this can be for up to 3 months. After the first 6 months, this can be for an indefinite period. Alternatively, the statement can give a specified start and end date.

Benefit implications

The crucial question for benefit claimants and welfare rights advisors is whether and how the 'fit note' affects a claim for benefit where the claimant's doctor has indicated that a claimant 'may be fit for work'.

The answer appears to be that the 'fit note' constitutes sufficient evidence of incapacity or limited capability for work for benefit purposes, even where the doctor has stated that the patient may be fit for work.

For the purposes of Employment and Support Allowance (ESA), regulation 21 of the ESA Regulations 2008 (SI 2008/794) states that the information or evidence required to determine whether a claimant has limited capability for work is evidence which complies with the Medical Evidence Regulations.5Regulation 30 requires a claimant to be treated as having limited capability for work pending assessment in prescribed circumstances, if such evidence is provided. The Medical Evidence Regulations simply require the provision of evidence in the form of doctor's statement on the prescribed form. This would include a statement that the claimant may be fit for work, as well as a statement that the claimant is not fit for work. As long as the statement is provided and completed by the doctor, therefore, it should constitute the required evidence.

Similar rules and the same arguments apply to incapacity benefit and income support on the basis of incapacity.6

Conclusion

It remains to be seen how frequently doctors will certify patients as 'may be fit for work', as opposed to not being fit for work and often employers will take note of and act on the advice given. The new format of certification, however, should have minimal impact on access to benefits.

Please be aware that welfare rights law and guidance change frequently. Therefore older Bulletin articles may be out of date. Use keywords or the search function to find more recent material on this topic.

  • 1. The Social Security (Medical Evidence) Regulations 1976 (SI 1976/615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985/1604).
  • 2. Reg 5 of the 1976 Regulations
  • 3. Reg 2(1A) of the 1976 Regulations as amended from 06/04/2010
  • 4. Statement of Fitness for Work. A Guide for General Practitioners and other doctors' Feb. 2010 (available online at www.dwp.gov.uk/fitnote)
  • 5. The Social Security (Medical Evidence) Regulations 1976 (SI 1976 No. 615) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (SI 1985 No. 1604).
  • 6. Regs 6 and 28 of the Social Security (Incapacity for Work) (General) Regulations 1995 (SI 1995/311)