ESA and FT Student

I may be wrong on this however, I have a client who made a claim for ESA and PIP in January 2014 whilst in FT education.

He is not now nor was he at the time a QYP.

My understanding is that, under reg 33 (2), client would be treated as having LCW and would therefore be exempt from the information gathering under reg 21.

However, I find it difficult to understand that, if he is treated as having LCW, why then is he not entitled to WRAC?

Surely, if client went through the WCA and was found to be fit for work, reg 33 would still mean that he can be treated as having LCW; creating a a bit of a paradox?

Does reg 33 not confer an exemption to the WCA as the wording is the same as reg 29 for example (‘is to be treated as having LCW’)?

On the same note, I spoke with a DM who advised me of this and also said that they had made a ‘determination’ and not a decision therefore, client is not conferred any rights of appeal.  This is something I have not heard of.

Does anyone have any ideas on this as I cannot fathom the circular nature of it all.

He should not have to go through the WCA - although in my experience this is often missed and needs pointing out. The WRAC should be payable from 13 weeks into the claim. If you think he should be in the support group there is a special version of the ESA50 (forget its name) that asks questions specifically relating to LCWRA which you can request is sent out.

If they determine (incorrectly) that he is not treated as having LCW then they could find him fit for work and that would be an appealable decision. I would just take it higher - it should be staightforward once the PIP award is pointed out to DWP and you have evidence of student status. Just a thought - rule only applies to irESA not cont ESA so do check he is on that.

This is exactly my interpretation of the regs however… is anything ever straight forward with DWP decision maker’s when they disagree…..?

Thanks for the confirmation.

For reference, a couple of previous threads related to this issue:

Can a client be deemed to be in WRAG or SG without a WCA being completed?

ESA and Students - treated as having LCW or not?

Thanks for that.

Just to keep you updated, I have now had to contact the client’s local MP to try and get a decision notice if nothing else. 

Due to the MR process, I am unable to appeal this poorly made decision, or at least so it appears to me.

Does anyone have any case law on this matter?  Might convince them to make the right decision without me having to go further and make complaints.

The main difficulty I have is persuading them that to have or be treated as having LCW confers upon the client WRAC (at least in this circumstance without ref to reg 30).

Thanks in advance.