WCA during appeal

Dear All

We are meeting with clients that are being called to attend WCA having lodged an appeal. My understanding was that during an appeal they would be paid the assessment rate whilst supported by medical certificates. The client would not be compelled to attend a WCA during an appeal as they had already been found fit for work; a decision that the client was in dispute with the JC+ over. My colleague has been informed that during an appeal a client will be required to attend a WCA.

We can tease out the repercussions of this later, but for today:

Can anyone confirm that this process is correct?

Most kind.

Richard Stacey

From Memo DMG 30/10:

Referral for WCA
44 The DM should not make a determination about LCW until the appeal is determined by the FtT1. This means that the claimant should not be referred for the WCA. But see paragraphs 45 - 49 where there is a change of circumstances before the appeal is heard.

1 ESA Regs, reg 147A(2)

Reg 147A was inserted into the ESA regs by SI 2010/840 and all this has been in force since June 2010.  However, we’re regularly hearing of similar situations.

Your client’s not had a change or deterioration of condition, or made a fresh claim have they?

The Clients have made neither fresh claim nor have their circumstances changed. I therefore conclude they should NOT be so compelled! Many thanks

They have made a fresh claim for ESA.  It’s just that they didn’t have to complete a new claim form in order to do so – see Reg 3(j) Claims and Payments Regs. 

Following that claim they are awarded ESA pending appeal (“ESA2”).  This is a completely separate award to the ESA that they are appealing against (“ESA1”).

There seems nothing in the law preventing a DM sending the claimant for a new medical before the appeal is heard.  So I wouldn’t advise a client that they do not need to attend a medical.

If the client fails the medical, the DM cannot make a new WCA determination ending the ESA2, not whilst the appeal is still outstanding, unless the DM feels that the client has significantly worsened or has a new condition.  It might be possible for the DM to argue, for example, that if the person scored 9pts in the latest medical compared to nil points in the WCA responsible for ending ESA1, then their condition has sufficiently worsened.  One UT judge has held, however, that significant worsening is evidenced only by the claimant actually passing the further medical, eg scoring 15pts.  If that judgment is correct then a person scoring 9pts compared to a previous 0 pts as above would not be said to have significantly worsened, thus preventing a DM making a new WCA before the appeal is heard. 

Where the DM accepts that there is no significant worsening etc, what he might do is keep the above failed medical on file.  Should the tribunal then subsequently allow the appeal against ESA1, he could use the medical at that point in order to make a new WCA ending the ESA2 via supersession.  That decision would be appealable and ESA could be paid pending that further appeal.

Thank you. For the avoidance of doubt; I would NEVER advise a client not to attend a medical.

Tom H - 18 July 2011 05:12 PM

There seems nothing in the law preventing a DM sending the claimant for a new medical before the appeal is heard.  So I wouldn’t advise a client that they do not need to attend a medical.

The law which prevents the SoS making a new LCW determination (and therefore the WCA being applied) is reg 147A(2), ESA Regs 2008 (as amended):

(2) Subject to paragraph (3), where this regulation applies, a determination of limited
capability for work by the Secretary of State under regulation 19 shall not be made
until the appeal is determined by the First-tier Tribunal.

Hence the guidance quoted above.  Yes, the award pending appeal is a new award but the amended regulations clarified that a new WCA should not be carried out and even if one is due to a change or deterioration of condition and the claimant fails it, it’s affect is suspended until such time as the FtT makes it’s decision (reg 147A(4)).

I would suggest contacting the BDC and quoting the above regs and DMG paras to them - obviously what you don’t want to happen is for your client’s award to be stopped even if it is on the basis of an error.

Sorry, should also have pointed that the point is that the claimant is treated as having LCW under reg 30(c) of the ESA Regs 2008 until the tribunal makes it’s decision, and as such no determination of LCW is required.

hkrishna

Have to admit that, whilst I disagree with you, your suggestion that I’d overlooked Reg 147A did raise a smile.  That’s because I must have posted many times previously on Reg 147A.  In fact at one point I felt I was trapped in some Rightsnet Groundhog Day on the issue. 

Still, with respect, I feel nothing in your two posts contradicts anything I said in my earlier post in this thread.  You seem to be confusing a WCA determination with a medical.  The DM can make a new WCA before the appeal (eg if there is a significant worsening), however, if he still fails the client under it then, yes, that WCA is “treated” as if it wasn’t made.  I wasn’t suggesting otherwise.  The DM can use the failed WCA later in order to supersede the ESA2 should the tribunal allow the appeal against ESA1.  Such supersession would be effective from the date the supersession is made rather than the date of the new WCA on which it is based.

Alternatively, if the DM cannot do a WCA due to Reg 147A(2), eg, because there has been no worsening etc, he can use any further failed medical which the client sat before the ESA1 tribunal as the basis of a new WCA following the tribunal, again where the tribunal concerned allowed the appeal.

The purpose of Reg 147A appears to be to allow the DM to time limit the tribunal’s decision where the tribunal allows the appeal (ie against ESA1).  However, there are a couple of arguments that I think may be used to counter the DM in those circumstances.  I’m very busy at present trying to clear the decks before going on leave but, at risk of 40 more days’ rain, I’ll try to post on this later today when I’m at home.

Richard, sorry I wasn’t suggesting you’d advise someone to miss a medical.

Tom,

While there may be the risk that all we are doing is vigourously agreeing with each other here but I’d suggest that reg 147A(2) should be considered in conjunction with reg. 23(1):

23.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination.

As reg 147A(2) prevents the SoS making a determination of LCW (other than for change or deterioration) until such time as the tribunal hears the appeal, there is no right to call the claimant for a medical during that time and so non-attendance can’t have the affect of treating someone as not having LCW either while appealing or after.  As such, the medical is pointless and I don’t see why the claimant is being asked to attend one nor that non-attendance could have any negative consequences; other than through an erroneous DWP decision.

Richard - ask the BDC under what regulation they are asking your client to attend a medical?

Hi hkrishna

I think we agree about the effect of Reg 147A.  I also think it is completely pointless sending a claimant for a new medical before their tribunal.  However, I think the DM has the legal right to order a new medical. 

The fact Reg 147A provides for the making of a new WCA in the event of a change of circs implies that a new medical is possible.  Yes, such WCA may be carried out without a medical, eg the DM could rely on a sick note alone, but surely he can ask for a new medical.  Reg 23 uses the word “may”.

You acknowledge that the person whilst waiting for their tribunal is treated as having LCW under Reg 30.  Consequently, they are within a new period of LCW defined by Reg 2(1) ESA Regs as follows:

“ .. a period throughout which a person has, or is treated as having, limited capability for work….”

I would have thought, therefore, that when someone is in a period of LCW it “falls to be detemined whether a claimant has LCW” for the purposes of Reg 23. 

If Reg 23 didn’t authorise a new medical in these circumstances, how would the DM decide an application for supersession made by the claimant her/himself whilst the appeal is outstanding.  Would they have to take the appellant’s word that they’d got worse together, perhaps, with a sick note?

The problem can be illustrated by an example:

1)  Client fails WCA (score: nil points) and ESA stopped from 10 Dec 2010
2)  Appeals in time indicating on GL24 that they wish to receive assessment rate ESA.  There is no need to complete a new ESA claim form due to Reg 3(j) Claims and Payments Regs
3)  Awarded ESA from 11 Dec 2010.  Needs to provide fit notes in order to continue being paid.
4)  DM sends client for new medical relying on Reg 23 ESA Regs.  Client does not have any new medical condition.  New medical scores client 0 points.  DM decides there has been no change of circs and so is unable to carry out a new WCA due to Reg 147A(2).  Client continues to receive assessment rate ESA.
5)  Tribunal allows appeal on 10 July 2011 scoring client 21pts and placing him in the work related activity group.  Tribunal decision simply replaces the decision in (1) above.
6)  DM revises the decision in (3) above using Reg 3(5E) Decisions and Appeals Regs and pays arrears of the WRAC for the period 11 Dec 2010 – 10 July 2011.
7)  DM then using the medical in (4) above makes a new WCA dated 11 July 2011 (score: nil points). 
8)  DM supersedes the revised version of the decision in (3) above and stops ESA from 11 July 2011. 
9)  Client has to appeal again and claim assessment rate ESA pending that appeal.

The above scenario is how the DWP see the law operating – see Example 1 of para 56 of DMG 33/10 (hkrishna your earlier post quoted DMG 30/10 but it’s actually 33/10).  Although admittedly in their example the claimant actually instigates the new WCA by asking the DM to re-assess him, but I feel the principle is the same.

I said in my earlier post that there may be a defence to the above scenario.
I think the decision in (8) above is legally dubious because there may not, in most cases, be a legal basis to supersede.  A new WCA such as the one in (7) above is not on its own enough to end an award of ESA; the WCA is merely a building block for the supersession decision itself which follows.

The DWP suggest that the supersession in (8) above is made under Reg 6(2)(r) Decisions and Appeals Regs (see the footnote to said example 1 in the DMG above).  Reg 6(2) provides as follows:

“6(2)  A decision under section 10 may be made on the Secretary of State’s …own initiative or on an application made for the purpose on the basis that the decision to be superseded–

(a) is one in respect of which–

(i) there has been a relevant change of circumstances since the decision
had effect…
……..
(r) is an employment and support allowance decision where, since the decision was made, the Secretary of State has–
(i) received medical evidence from a health care professional approved by the Secretary of State, or
(ii) made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations…”

The problem with 6(2)(r) is that it just requires “receipt” of a medical without there being any need for a determination by the DM.  This would theortetically prevent a claimant challenging an unfavourable WCA determination.  The DM could if he wished say “ yes it’s a rubbish medical report and I’ve made a rubbish determination on the strength of it but the law simply requires me to have received the medical report and guess what, take a look at this printout, I received it”.

The fact the DM will nearly always have made a WCA is not the point.  Reg 6(2)(r) appears legally flawed.  It is possible for judges to read in words to save it but they will only tend to do this where the provision is not clear.  The Tribunal of Commissioners in R(IB)2/04 set out the position at para 50:

“The meaning of a statutory provision which is so clear that it admits only one possible construction cannot be altered or departed from by reference to the consequences, however inconvenient or anomalous, which would result from the application of that meaning.”

So is it possible for the UT to read in to Reg 6(2)(r) words such as “and has made a Limited capability for work determination”?  I would argue not for the following reasons:

continued…..I’ve had to start a new post because I’ve reached Rightsnet’s character limit for one post.

continued….
I would argue not for the following reasons:

•  The drafsman has deliberately departed from the wording of the equivalent regulation in IB, ie Reg 6(2)(g).
•  Reg 6(2)(r)(ii) expressly provides for a determination whereas (r)(i) does not.
•  Reg 7(38) D & A Regs provides as follows:

“(38) A decision made in accordance with regulation 6(2)(r) that embodies a determination that the claimant has–
(a) limited capability for work; or
(b) limited capability for work-related activity; or
(c) limited capability for work and limited capability for work-related activity

which is the first such determination shall take effect from the beginning of the 14th week of entitlement.”

This arguably implies that not all decisions made under Reg 6(2)(r) have to embody a determination.  And in any event Reg 7 is concerned with when a supersession takes effect rather than with the grounds of supersession.  Reg 7 presupposes that there is a legal basis for the supersession under Reg 6.  It arguably cannot itself belatedly provide that basis.

If I’m right then the only ground for the DM’s supersession in (8) above is Reg 6(2)(a)(i) above, ie a change of circs.  But by the DM’s own admission there was no change of circs – see point (4) of my above scenario.  However, even if the DM had felt there was a change of circs, the old caselaw to the effect that only a change of clinical findings is a change of circs for 6(2)(a) would apply.  We would be back in the situation we were in prior to the introduction of Reg 6(2)(g) in IB.

This has wider import.  People on ESA have been re-assessed regularly especially when they win tribunals.  Reg 19(8)(c) ESA Regs provides for a minimum of only 3 months before a new determination can be made.  However, it’s not Reg 19(8) but the resulting supersession that matters, and for all these re-assessments it’s Reg 6(2)(r) that the DWP are relying on.  I am at permission to appeal stage with a case where they re-assessed my client 12 months after he won his ESA tribunal.  His clinical condition was unchanged and I’m arguing that there is no legal basis to supersede.

Sorry this took so long.

edit: oh yes, Hkrishna, see the point you’re making now.  Sorry I’ve been in rush as I’d explained earlier.  You’re arguing that in the present situation it only “falls to be determined” for the purposes of Reg 23 where Reg 147A(2) doesn’t apply, eg a significant worsening.  But how, apart from when the claimant himself applies for supersession,  would the DM be sure that Reg 147A(2) didn’t apply without having the power to order a new medical? Are you saying there’s a freestanding test for significant worsening of condition? Or more likely, that the DM shouldn’t trouble himself with a change of circs unless instigated by the client?  That would be a fair point.  Though I suspect if an appeal was dragging on for months/years, the DM might want to check the current award of ESA pending appeal. Or, laughable I know, he might feel that he is duty bound to check that someone isn’t labouring on the assessment rate unnecessarily when they may have got worse. In any event, I don’t think it alters my above legal point where a supersession is eventually made, eg where client asked to be re-assessed and still failed the resulting WCA.  But good point all the same.  It may well be that a new medical is not possible absent an application for supersession by the claimant.

Hi Hkrishna. Me again.

You’ve convinced me.  I went the whole of this discussion without even looking at Reg 147A, relying on memory alone.  Looking at the reg afresh I agree that 147A(3) acts as a shield not just against a new WCA (which was always my view) but against a new medical also unless one of its paragraphs is satisfied, ie a new condition or significant worsening.  I think you’re right to say that until 147A(3) applies it doesn’t “ [fall] to be determined whether a person has LCW” for the purposes of Reg 23.  That’s a very clever argument.

What’s less clear is the level of evidence needed to get past the shield.  Obviously, if a client asserts that he is significantly worse or if there is a new condition appearing on his sick note, perhaps regardless of how minor that condition is, then the shield is likely to be lost.  The DMG used to state that a DM could send a claimant to an HCP just to get an opinion on whether there was a new or worsened condition but the para concerned appears to have been removed from the latest DMG. 

Where 147A(3) does not apply, I agree with you too that the client’s non attendance at a medical should not affect his ESA either before or after the appeal tribunal. 

But even where Reg 147A(3) does apply, the client can simply refuse to return a new ESA50 and/or fail to attend a new medical without risking having his ESA stopped before the appeal is heard. That is due to Reg 147A(4)(a) which says that any determination under Reg 22 (failure to return questionnaire) or Reg 23 (failure to attend medical) is deemed not to have been made whilst the appeal is outstanding.  Whether the DM might then attempt to return to the matter, ie Reg 22, 23, after the client is successful at tribunal is another matter.

My earlier scenario would still apply in the case where the client asserted a new or worse condition and then failed the resulting WCA.  That WCA would be deemed not to have been made until the successful tribunal takes place.  It would, however, be made immediately afterwards as in point (7) of the scenario. The DM might attempt to argue that the client is then hoist by his own petard, ie the client had himself asserted a significant worsening, thereby allowing a supersession under Reg 6(2)(a), ie change of circs.  However, the DM would have to tread carefully given he’d still failed the client under the new WCA, an action arguably inconsistent with a change of circs, and there may still not be any change in the clinical findings.

And also, as I said earlier, the legal argument about Reg 6(2)(r) has much wider application than the present situation.  I am prepared for it being given short shrift, however, at the UT.  As one FtT judge said to me recently as he pointed to the tribunal’s door: “ if the Ministry of Justice found out that I’d accepted your submission Mr H it would be a short walk for me to that door”.

Tom,

Glad we’ve come to understand one another :)

I still think it’s important for Richard’s client that they ask the BDC under what regs he’s being asked to attend a medical, precisely for the reason you identify, ie that they’re contending that reg 147A(3) applies.

hkrishna - 22 July 2011 02:20 PM

Tom,

Glad we’ve come to understand one another :)

I still think it’s important for Richard’s client that they ask the BDC under what regs he’s being asked to attend a medical, precisely for the reason you identify, ie that they’re contending that reg 147A(3) applies.

Agree.  I think a letter along the following lines should do the trick:

Dear Sir

Customer’s name:
NINO:

The law states that a person may be sent for a medical examination only when the question of their limited capability for work (LCW) “falls to be determined”(1) .  It also states that, whilst a person is appealing an earlier LCW decision, a new LCW determination shall not be made unless the person has a new medical condition or their existing condition has significantly worsened (2) .  If a new determination cannot be made then, obviously, the question of the person’s LCW does not fall to be determined as required above and so they cannot be sent for a medical.

As a result, whether a person may be sent for a medical whilst they are appealing will depend on whether they have a new or significantly worsened medical condition.  A new condition should be apparent from the customer’s fit notes which they are expected to provide whilst appealing.  The law does not define “significant worsening” but common sense dictates that the person best placed to decide this is the person who is affected by the condition.  Nevertheless, DMG 42205 provides the following guidance to a decision maker:

“42205 Advice can be obtained from medical services on whether the reason for LCW is new or the previous medical condition has significantly worsened if this is not clear from the available evidence.”

I am assisting the above customer and enclose authorisation. He is currently appealing a decision that he did not have LCW.  He is receiving ESA at the assessment rate until his appeal is heard by a tribunal.  He reports that there has been no significant worsening of his condition(s), nor has he been diagnosed with a new medical condition.  Nevertheless, he says that he has been asked to attend a medical. 

I am writing to clarify the law used to justify your decision to send him for a medical.  I am concerned because the law would clearly appear to prevent a further medical in this customer’s case.  Please give this your urgent attention.  Please also confirm that you will put on hold your decision until you have had the chance to check the law and respond to me.

ESA Regs: 1 Reg 23(1); 2 Reg 147A(2) & (3) & DMG 42470 and 42471