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

A mire of changes of circumstances

Dan_Manville
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Well I’ve just bumped into a right mess…

Cl found fit for work in March ‘13, appeals and has a nasty accident and consequent brain injury that leaves them in hospital for a long time until recently.

Tribunal hears the appeal in absentia and refuses. ESA stops while cl still in hospital. 6 weeks since discharge now and no ESA in payment.

Obv they should have been treating as reg 25 LCW while in hospital and hopefully I can persuade them that they’re still recovering now but what then?

How can a DM supersede reg 25 LCW without a WCA? By stating a bare fact that “she must have recovered by now”?

I’m wondering whether this has been covered before. Obv I can deal with the set aside request but CTS made a right mess of expediting the last one in similar circs and I want the old claim in payment ASAP.

If anyone has any experience of similar I would be grateful.

[ Edited: 2 Apr 2014 at 03:30 pm by Dan_Manville ]
Bryan R
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Headway - The Brain Injury people have a specialist adviser Dan, perhaps starting there might be a good idea

https://www.headway.org.uk/home.aspx

Dan_Manville
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Cheers Bryan but I don’t think it’s the brain injury that’s at issue; it’s the handling of the change of circs after she was found fit that I’m curious about.

I’ve fully assessed now and I think I’ve got legs to challenge the cessation of the award due to ongoing recovery as we’re sending in rehab teams ourselves now, but the fact remains that she was found fit, unsuccessfully challenged that so the claim was ended whereas in reality they probably should have superseded when she was admitted to hopsital and in effect accepted a new claim which should have endured past the Tribunal; that didn’t happen.

It’s just an administrative issue really.

Bryan R
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How can a DM supersede reg 25 LCW without a WCA? By stating a bare fact that “she must have recovered by now”?

Maybe they used ESA Regs 2008 36(2)?

Dan_Manville
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Bryan R - 02 April 2014 01:08 PM

Maybe they used ESA Regs 2008 36(2)?

That’s only Limited Capability for Work Related Activity, not Limited Capability for Work.

 

The more I brood on this I can see a flaw in the way ESA is set up; it’s all about someone falling ill then getting better; there seems to be limited provision for situations such as this where there’s a significant change of circs. I’m just hoping this falls with a sensible decision maker rather than some nutjob who’s bought the DWP mantra… “Your claim will be exterminated”

Edit; although I think it will probably complicate things I’m going to put a new claim in too.

[ Edited: 2 Apr 2014 at 02:32 pm by Dan_Manville ]
1964
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Dan, just a thought, but..

Negative WCA decision made March 13
Appeal heard recently (presumably after Oct 13 when client was admitted to hospital)

If client makes new claim now and requests 3 months backdating it should more or less link to the tribunal hearing date (and date client was last paid ESA) won’t it? Claim should be accepted and paid on basis both that it is outside 6 months from the negative WCA decision and there has been a significant change in circs anyway. That would at least get ESA in payment whilst you sort out the set-aside issue.

Sorry if I’m stating the bleeding obvious or missing something.

Tom H
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DManville - 02 April 2014 11:54 AM

How can a DM supersede reg 25 LCW without a WCA? By stating a bare fact that “she must have recovered by now”?

Well, it’s not clear from your post when DWP were aware she was in hospital.  They would have ended her ESA pending appeal under Reg 147A when they received the tribunal result, unless they were aware she was in hospital.  I’d try to get that decision revised as it seems they were not aware.

Generally, any supersession of Reg 25 decision would be challengeable on the grounds you suggest: that she satisfies the WCA.  I’d want to know the type of determination used to supersede Reg 25.  If not a Reg 19, 22 or 23 determination then there’d be nothing stopping her making a new claim and being paid given that 6 months’ rule would not apply. 

Best option I think is revision (official error) of the Reg 147A decision.  That decision, as revised, should have awarded a component 13 weeks after Oct 2013- see Reg 4 ESA Regs.

Dan_Manville
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Tom H - 02 April 2014 02:38 PM
DManville - 02 April 2014 11:54 AM

How can a DM supersede reg 25 LCW without a WCA? By stating a bare fact that “she must have recovered by now”?

Well, it’s not clear from your post when DWP were aware she was in hospital.  They would have ended her ESA pending appeal under Reg 147A when they received the tribunal result, unless they were aware she was in hospital.  I’d try to get that decision revised as it seems they were not aware.

Generally, any supersession of Reg 25 decision would be challengeable on the grounds you suggest: that she satisfies the WCA.  I’d want to know the type of determination used to supersede Reg 25.  If not a Reg 19, 22 or 23 determination then there’d be nothing stopping her making a new claim and being paid given that 6 months’ rule would not apply. 

Best option I think is revision (official error) of the Reg 147A decision.  That decision, as revised, should have awarded a component 13 weeks after Oct 2013- see Reg 4 ESA Regs.

Thank you. I don’t know whether DWP were informed; there are med certs issued but they don’t say whether they’re med 3s or med 10s. I’d imagine a GP would accede responsibility for certificates to the hospital but don’t know for sure.

Thanks on the revision; I’ve been thinking supersession to protect the compoinent from the date of admission but will include the revision request too.

Edit: one good thing is that the med10 isn’t a prescribed form so they can accept whatever evidence is available of the admission and I’ve got loads of that, just not on a med10.

Another edit; I do know that if they get a med10 when someone’s admitted/detaiend they won’t revise to include the WRAC if someon’e deemed to have LCW by virtue of reg 30; they should but in practice they don’t, not round these parts anyway. This is why it’s entirely possible that they knew clinet was admitted but didn’t do anything about it.

 

[ Edited: 2 Apr 2014 at 02:52 pm by Dan_Manville ]
Dan_Manville
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1964 - 02 April 2014 02:32 PM

Dan, just a thought, but..

Negative WCA decision made March 13
Appeal heard recently (presumably after Oct 13 when client was admitted to hospital)

If client makes new claim now and requests 3 months backdating it should more or less link to the tribunal hearing date (and date client was last paid ESA) won’t it? Claim should be accepted and paid on basis both that it is outside 6 months from the negative WCA decision and there has been a significant change in circs anyway. That would at least get ESA in payment whilst you sort out the set-aside issue.

Sorry if I’m stating the bleeding obvious or missing something.

No you’re not but I want that WRAC to be paid too; it’s payable if they do their job properly…

Looking at our notes I’ve a horrible feeling the set aside’s not a goer for reasons I need not discuss here.

1964
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Fair do’s. I see where you’re coming from.

Hope you can find grounds for the set-aside…

Dan_Manville
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An aside… it’s funny to look at things from a physical perspective again; I’d be yelling and screaming at DWP not paying the WRAC during admissions in my old jobs but in this one, until now, if a client ends up in hospital during an appeal they will win the appeal so the WRAC’s just an arrears issue. The person concerned is fed, watered and sheltered so it’s not a problem but in this case it’s a whole different can of worms.

The sad thing is that so many of my clients did end up in hospital during an appeal; hopefully that will change with the suspension of WCA reviews and a new contractor.

Dan_Manville
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I’ve half a mind to appeal against the new claim decision, when it’s made; however I can see tetchy adjudication issues and it’s Monday morning…

If I make an appeal on a new award can it take the old circumstances into account I wonder? S24(2) starts the assessment phase on the first day of entitlement so my grounds fo appeal would be “she was entitled already” so I reckon it’s a goer.

If anyone would wish to dissuade me…

Dan_Manville
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Bump

First stage of decisions are in… New claim awarded and Mandy lodged arguing that previous claim shouldn’t have been closed.If they backdate 3 months it will link back to last period of LCW.

I went down the supersession route as that would secure WRAC from date of admission and they sent the letter back to the claimant (not me, the author…) with a letter saying “you’ve had your Tribunal decision, it could be set aside or appealed”. Sadly it didn’t contain a Mandy statement so I’ve appealed against the implicit refusal to supersede.

Someone at JCP will soon get a headache unless they start listening!

Dan_Manville
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Being as I’m staring at this now I thought I might as well update it… Still dragging on and after yelling blue murder for months now they’ve finally referred it to DMA for advice.

Warren, if you’re watching are there any strings you can pull? This lass is in tremendous hardship and the last one of mine that was referred in about 8 weeks ago is still there. It really should have been straightforward but nobody at the local office could see past the Tribunal decision for months; they’ve even sought advice as to whether my appeal against the CAP39 letter was a set aside application; it’s been a real farce!