LCW, Appeals and the work program

OK folks : here’s one for y’all.

Client claims ESA : fails WCA : Appeals : Wins tribunal : placed in WRAG and is told she must participate in work focused training with private welfare to work(sic) provider Ingeus.

As she has been treated as having a LCW, and therefore in WRAG, then she must attend these training programmes or face a sanction (fair enough under new rules i suppose)

She will have to attend another medical in 2 months and if she fails that one as well she intends to appeal again.

If she doesnt score the 15 points+ required then she will be informed by letter (unless JC+ do their party trick of bullying her into closing ESA claim and opening JSA claim over phone) that she is “no longer entitled to Employment and Support Allowance”

She will then receive ESA payments of £71 per week while appealing.

My question is this : during the time of appealing the decision (and therefore in receipt of assesment phase) she is no longer treat as having LCW, so can she withdraw from the work program without sanction??

Thanks Tony, thats what i thought.
If she doesnt score 15 points then she will be informed that “she is not entiltled to ESA” and as no LCW determination then participation should not be compulsory (hopefully)
Any other opinions would be appreciated !

I agree Tony. Common sense would dictate that there should be no compulsion to participate, however we are talking about the DWP here so perhaps common sense should not be applied!

Reg 63 was amended last June, para 1 now goes:

1(1) Where the Secretary of State has determined–
(a) that a claimant who was required to take part in a work-focused interview
has failed to do so and has failed to show good cause for that failure in
accordance with regulation 61; or
(b) that a claimant who was required to undertake work-related activity has
failed to do so and has failed to show good cause for that failure in
accordance with regulation 8 of the Employment and Support Allowance
(Work-Related Activity) Regulations 2011,
(“a failure determination”) the amount of the employment and support allowance
payable to the claimant is to be reduced in accordance with this regulation

So you can be sanctioned for not doing work related activity (they also dropped the WFHRA bit)

I also think para 2 just sets the amount of sanction by reference to the rate of the WRAG rather than meaning that only the component gets sanctioned. This is the wording:

(2) Subject to paragraph (3), the amount of the reduction in relation to each failure
determination is–
(a) 50% of the amount of the work-related activity component as set out in Part
4 of Schedule 4 for the first 4 benefit weeks to which, by virtue of section
10(5) of the Social Security Act 1998(a) or regulations made under section
10(6) of that Act, the reduction applies; and
(b) 100% of the amount of that component for each subsequent benefit week.

If it could only be knocked off the WRAC then there would be no need for para 35 of reg 7 DMA Regs

“(35) A decision made in accordance with regulation 6(2)(q) where the failure determination was made before the 13th week of entitlement shall take effect from the first day of the benefit week following that week”

I think the legal position might be this (references are to the ESA Regs unless stated otherwise):

1)  A failure determination is made for either a failure to attend a WFI or a failure to do work-related activity.

2)  ESA is superseded under Reg 6(2)(p) Decisions and Appeals (D&A) Regs.

3)  The earliest date that the supersession can start is effectively wk14 – see Regs 7(35) and (36) D&A.

4)  Reg 63(2) reduces ESA by the following:

(a)  “50% of the amount of the work-related activity component…for the first 4 benefit weeks to which, by virtue of section 10(5) of the Social Security Act 1998 or regulations made under section 10(6) of that Act, the reduction applies; and

(b)  100% of the amount of that component for each subsequent benefit week.”

The reference here to section 10 makes it clear that the amount and duration of the reduction are both tied to the supersession decision at point (2) above. 

Reg 63(3)(c) also clarifies that the maximum reduction regardless of the number of failure determinations is 100% of the value of the WRAC.

5)  The claimant then fails the WCA and loses entitlement to ESA altogether.  The decision at point (2) above is now itself superseded under Reg 6(2)(r)(i) Decisions and Appeals Regs.  This appears to have the following consequences:

(a)  The requirement to attend WFIs ends by virtue of Reg 54(3)  because the claimant no longer satisfies Reg 54(2)(a).

(b)    The requirement to undertake work-related activity no longer applies (rather than ending as such) because the requirement concerned was only a condition of entitlement to the full amount of ESA – see Reg 3(1) of the ESA (work-related activity) Regs 2011: http://www.dwp.gov.uk/docs/a13-5651.pdf .  Obviously, if you’ve failed the WCA you’ve lost the full amount of ESA anyway.

(c)  Any reduction imposed because of a failure to attend a WFI also ends by virtue of Reg 64(2)(b).

(d)  Any reduction imposed because of a failure to undertake work-related activity ends by virtue of Reg 64(1)(b).

6)  Claimant appeals the WCA decision and asks for ESA to continue whilst appealing.

7)  ESA is paid at assessment rate pending appeal.  This is a new award made under section 8 Social Security Act 98 rather than a continuation of the old award.  The requirement to complete a new claim form was waived under Reg 3(j) Claims and Payment Regs.  This new award would appear to have the following consequences:

(a)  The requirement to attend WFIs arguably re-commences because the claimant once again satisfies Reg 54(2)(a)(i).  And he’s not PRESENTLY in the support group so he arguably satisfies 54(2)(b) also.  But see below.

(b)  The requirement to do work-related activity arguably applies again but it wouldn’t if the claimant got into support group.

(c)  The reduction previously imposed for the failure determination cannot resume because it was tied entirely to the supersession decision at point (2) above which was itself ended by the further supersession at point (5).  It cannot attach itself to the new award of assessment rate ESA because the latter is made under section 8 SSA rather than under section 10(5) or (6) required by Reg 63 – see point (4) above. 

This can be contrasted with a JSA sanction which continues to have effect for its duration, eg 26 weeks, even if entitlement to JSA ends in the meantime.  So that if someone re-claims JSA whilst still within the 26 weeks of the original sanction, the new award is subject to the remaining weeks of the sanction – see commentary to section 19(2) Jobseekers Act at page 96 of Volume 2 Social Security Legislation 2011/12.

8)  Provided the requirement to attend WFIs or do work-related activity arises, the DM could attempt to reduce ESA afresh based upon a new failure determination (eg, if the claimant continued to refuse to do work-related activity).  But this new reduction would require a new supersession of the award in (7) above.  The grounds for superseding would again be Reg 6(2)(p) D&A and the earliest date it could start would effectively be week 14 of the award in (7) – see Reg 7(35) D&A.

So, whilst Damian may be right that you don’t need to be in receipt of the WRAC in order to have your ESA reduced (eg, your assessment rate pending appeal could be reduced by an amount equal to either 50% or 100% of the WRAC), I think the earliest that could happen would be week 14.

9)  If the claimant wins WCA appeal, the award in (7) is revised under Reg 3(5E) D&A and one of the following scenarios occurs:

(a)  Tribunal awards the WRAC, payable from day 1 of the award in (7) above.

(b)  Tribunal awards support component which, again, would retrospectively apply from day1 of the award in (7).  If assessment rate ESA pending appeal had been subject to a reduction based on a failure determination then that decision would, presumably, also have to be revised and the money returned to the claimant along with arrears of the support component. 

On reflection, this last point arguably means that assessment rate ESA pending appeal should not be reduced at all, ie even from wk14, on the grounds that it’s just not possible to say whether a claimant is going to be retrospectively placed in the support group by the tribunal.  And just not possible to say, therefore, that the requirement to attend WFI/do work-related activity ever arises during the award of ESA pending appeal. 

The government would be heavily criticised for allowing ESA to be reduced to as little as £42.85 p/w (ie £71 (assessment rate) - £28.15 (100% of Wrac)) only for it to emerge afterwards that there should never have been a reduction because the person was subsequently found to have always been in the support group.

And another point: attending WFIs and doing work-related activity are simply conditions for receiving the full amount of ESA – see Reg 54(1) ESA Regs, and Reg 3(1) Work-related activity Regs.  “Full amount” is not defined.  I’d argue if need be that it must be referring to the main phase payment (ie, when ESA is at its fullest) so that the requirements to attend WFIs etc do not even arise until you’re entitled to the WRAC.  So whilst Reg 63 implies, as Damian points out, that receipt of the WRAC is not necessary for a reduction to apply to your ESA, I suspect it will be necessary in practice.

So in answer to the original question, there is arguably not only no reduction to ESA whilst appealing but also, arguably, no requirement to take part in WFIs or undertake work-related activity either.

i have a case on the mirror-side of the above…

cl has mild/moderate learning difficulties, awarded 18pts at ftT march ‘11, DWP processed/paid up june ‘11 and further WCA june ‘12 - 0pts

cl clearly frustrated as he was attending and due to attend training courses arranged via JCP p.a who he had built a good relationship with - now been told by her she cant continue to assist him as he is back in the ass-phase

this suggests DWP policy that no WFI/WRA can be undertaken unless cls are in main phase WRAC

im looking at doing a recon pre-ftT and have been trawling the net for some sort of policy info re: WRAC - the DM guidance olny covers application of law not what the law intended.

tbh - in this particualr case i think WRA is very beneficial, cl was growing in confidence and abilities through trainnig attended and may well have been able to start work if given the full 2years of WRA that the likes of ingeus/a4e work under the remit of

The fact there is no requirement to do work-related activity surely doesn’t prevent a person from consenting to undertake it.  I’m sure I read some guidance some time back that said those in the support group could volunteer to do work-related activity despite similarly being under no compulsion.  There must be a difference between mandatory work-related activity and consensual, the above law affecting the former only.