Repeat Work Capability Assessments

I knew this day would come…

I’ve just won a WCA appeal on a repeat WCA determination. The previous WCA was done in Nov 22, this was Nov 23. med3s having been submitted from July 23.

I note from reg 41(4)(a) UC regs allows a WCA to consider whether there are grounds for an any time revision of a previous determination or whether there’s been a change of circs.

Has anyone ever seen a WCA determination which specified which ground the WCA is being conducted on and is the referral for the new WCA an open door to revise the previous decision?

In this case, the client was arguably worse off when the previous determination was made than the current one…

So… has anyone seen a previous WCA revised by a new one or even discussion of that prospect in the appeal response? Shouldn’t it really be there? Has a two seater Tribunal got jurisdiction to consider it (I note the PD on tribunal constitution is in broader terms than when I last looked at it a decade or more ago)

Is there a whole procedural SNAFU here and what’s my remedy?

I suspect I’m going to end up challenging the period for which arrears are paid but I think I’ll need a SOR of this decision just to be on the safe side and a hard think.

I take it that we are talking here about a case where your client has been found fit for work at WCA1 and now - post FtT - has been found to have LCW/LCWRA at WCA2?

I think that you are going awry as to the effect of reg 41(4). It doesn’t authorise revision of the WCA1 decision. It prohibits WCA2 from being carried out unless there is “evidence to suggest” either a mistake of fact or change of circumstances.

The first point then is that “evidence to suggest” does not require the DM to reach a conclusion as to whether or not WCA1 actually involved a mistake of fact.

The second, and more fundamental, point is that even if WCA1 does involve a mistake of fact adverse to the claimant, that doesn’t provide grounds for revision. Mistake of fact is only a ground for revision if it goes in the claimant’s favour. Mistake of fact adverse to the claimant is a ground for supersession, but only effective from the date of the superseding decision or application for supersession. See reg 24 & 35 and cf reg 9 D&A.

If your client wanted to argue that the decision embodying WCA1 should be revised, then - given the dates involved - their only option now would probably be to apply for any time revision on grounds of official error. Obviously a great deal of difficulty arguing official error on a WCA case where the SSWP can argue they were following the HCP’s advice.

(4) If it has previously been determined on the basis of an assessment under this Part or under Part 4 or 5 of the ESA Regulations that the claimant does not have limited capability for work, no further assessment is to be carried out unless there is evidence to suggest that—

(a)the determination was made in ignorance of, or was based on a mistake as to, some material fact; or
(b)there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition