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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

DWP admit official error by not referriong claimant for WCA

Terry Craven
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Benefit Advice & Appeals Service, Liverpool Veterans

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Total Posts: 39

Joined: 19 January 2015

It is my case that the claimant has been in the support group throughout. The DWP say prior to 31 July 14, he was in the WRAG. Several letters have passed between the DWP and me, which ostensibly have been ignored. I made a complaint 4 weeks ago and have now received a reply from the local BC, which reads.
“The claimant notified us of a worsening in his condition on 31 July 2014.  However, we failed to refer the case to ATOS as directed by the DM. We will now conduct the assessment”
Notwithstanding the fact my client has had a breakdown because of this and alleged overpayments, I believe it is grossly unfair to refer his case for a WCA, 18 months after the event. I am arguing that the benefit of doubt must go to the claimant. Has anyone used this argument or similar in a case of official error.
I have also asked the DWP to disclose the documents on file because I think the recent letter is a bluff trying to cover over the mistakes!
Any comments and advice would be appreciated. Thanks Terry

Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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Joined: 15 October 2012

You can argue that he should have been in the Support Group but absent a decision to that effect he wasn’t.

Reading between the lines I guess that your client’s health has improved now however if the trials and tribulations of being in the WRAG have led to a breakdown maybe it’s a reg 35 job; was there a history of MHPs?

There is no scope to argue the benefit of the doubt; the question is whether, at the date of the decision, your client had LCWRA; there are clearly grounds for the supersession to be made from the date of notification but other than that there will need to be a WCA decision based on all the facts and that assessment is necessarily contemporary; there is no provision for a decision on the WCA to be retrospective.

If you feel he’s lost out you might be able to ground a money claim on negligence but beware falling foul of the Legal Services Act 2007; he’d need to bring the litigation himself or with a solicitor.