ESA claim ended - WCA never happened - how to get main phase component

Hi,

I need some advice on the following:-

Client and partner were getting ESA - couple assessment phase rate for over a year and no WCA took place - client did get called in for one but asked for it to be held at her home and got GP letter to verify this. Recently, client was awarded DLA - HRC/HRM - I advised client’s partner to claim CA and IS as this would be more money than ESA even if client was placed in Support Group. Client’s partner claimed CA and IS and the ESA claim has ended. Client has tried to find out how to get backdated WRAG or Support Group component but has been told by DWP that as her claim has ended there is nothing they can do. Do i need to make a complaint and demand a WCA in order for the client to get the backdated main phase component - especially as it has taken over a year and she never had a WCA. I hope this makes sense.

Thank you for your time.

I wouldn’t take JCP’s word for it that the matter is closed. I’d ring ATOS and check whether they’ve got a referral still.

Especially with home visits it’s not difficult to envisage their sitting on it for so long.

I’ve seen people dragged in for assessments months after they’ve closed a claim for one reason or another; cessation of payment does not end a period of limited capability for work after all; there are still NI credits to consider.

I think he will struggle to get the backdated component - see CE/1467/2013 (http://www.osscsc.gov.uk/Aspx/view.aspx?id=4105) which will be going on briefcase imminently.

This says that under Reg 4 of the ESA Regs the assessment phase continues until there has been a LCW determination - if there hasn’t been one and the claim ends then it stays in the assessment phase :(

Daphne - 09 April 2014 05:41 PM

I think he will struggle to get the backdated component - see CE/1467/2013 (http://www.osscsc.gov.uk/Aspx/view.aspx?id=4105) which will be going on briefcase imminently.

I don’t think that that judgment is strong authority for the proposition that where, for whatever reason, ESA ends without a LCW determination having been made then no such determination can be retrospectively made for the period wk14 - date award ended.  The final passage of the judgment reads as follows:

“As he was never assessed before his claim ended, he was deprived of the chance to show that he was entitled to the additional work-related activity component from early November 2011. However, that is the effect of the way that the legislation is drafted” (my emphasis).

I accept the last sentence appears to rule out a retrospective WCA .  However, I don’t think it is safe authority for the following reasons:

(i) The point about a retrospective WCA was not argued in the case at all so the final sentence appears obiter.  It is even arguable that the part of the judgment about the ending of the assessment phase is equally obiter (although the Judge’s comments, provided in the knowledge that other FtTs had been stayed, are doubtless highly persuasive) given that the SSWP was successful on the first ground of appeal about jurisdiction. 

But the main point is that retrospective WCAs weren’t directly in issue.  Instead, the issue that was fully argued was the ending of the assessment phase.

(ii) It is not clear how the effect of Reg4, as clarified by the judgment, is to deprive a person of a LCW determination.  It does not rationally follow from the fact that the assessment phase ends only when the LCW determination is made that such determination cannot then be made retrospectively.  The issues appear entirely separate.

Reg 7(38) D&A, not discussed at all in the judgment, when read with Reg 4 ESA provides, in effect, that the assessment phase ends after 13 weeks where the person is determined, including retrospectively, to have LCW. 

That just leaves the question does a person have a right to a WCA?  Unfortunately, the legislation is not clear on this.

Reg 32A provides as follows:

“32A.(1) Where the Secretary of State is satisfied that it is appropriate in the circumstances of the case a claimant may be treated as not having limited capability for work if–

(a) the claimant has supplied medical evidence;

(b) the period for which medical evidence was supplied has ended;

(c) the Secretary of State has requested further medical evidence; and

(d) the claimant has not, before whichever is the later of either the end of the period of 6 weeks beginning with the date of the Secretary of State’s request or the end of 6 weeks beginning with the day after the end of the period for which medical evidence was supplied–

(i) supplied further medical evidence, or

(ii)  otherwise made contact with the Secretary of State to indicate that they wish to have the question of limited capability for work determined.

(2) n/a [defines “medical evidence” as including a sick note]”

So it is apparent that a person faced with losing ESA for not having a sick notes has the right to request a WCA (sub para (d)(ii) above).  It’s true that the onus is explicitly on the claimant to indicate that they still wish to be assessed.  Where the person’s health has improved to the extent they can no longer get a sick note, the opportunity to obtain potentially valuable evidence by sending them for a medical may be lost.  However, that is an evidential issue.  CE/1467/2013 by refusing to sever the LCW assessment from LCW determination, allocating responsibility for both to the DM, confirms that an Atos report is not needed for a LCW determination.  The Judge’s reasoning, therefore, does not rule out the possibility of a retrospective WCA using the available evidence.  If anything, it lends support to the view.

But does Reg 32A apply where the IRESA ends because the person’s partner claims IS?  Not directly but it seems all a person would have to do is stop putting in sick notes prior to the partner’s claim and request a WCA to acquire the protection of the reg.

However, even where the person continues to put in sick notes after their ESA ends, I don’t think the law automatically prevents a WCA.  Fair enough, there doesn’t appear to be another provision like 32A which could imply that the law does deprive you of a WCA in all other circs.  However, there is certainly nothing expressly preventing a DM doing a WCA for the past period if the award ends prematurely.  A decision notice has to be sent in any event (ie confirming that ESA has ended because of a change of circs – the partner’s award of IS).  That supersession decision is only effective from the date of change rather than wk14.  That decision notice is, ultimately, appealable and a tribunal standing in DMs shoes could be asked to make that retrospective WCA.  I suspect another UT might be needed to clarify this one.

It may have been different if the decision under appeal in CE/1467/2013 had been the decision ending the appellant’s ESA, rather than a decision made very early on (before the expiry of 13 weeks even).

This also raises other issues.  When a person fails to attend a medical they are treated as not having LCW but that supersession is similarly effective only from date of change not retrospectively.  That raises the question should we be arguing at all failure to attend (FTA) appeals that, even where the FtT finds no good cause, there remains the issue of the person’s actual WCA from wk14 – date of FTA? Tribunal would have to reconvene with a medical member if that’s right. 

DManville - 07 April 2014 10:50 AM

..cessation of payment does not end a period of limited capability for work after all; there are still NI credits to consider.

Dan, the issue of when a period of limited capability for work (pLCW) starts/ends/continues has been discussed in other threads.  I don’t wish to duplicate them.  Suffice to say that the pLCW wouldn’t in my view continue here. 

I’ve mentioned in other threads that the DWP also appear to award credits automatically but I think it’s important to point out that that policy appears to operate only where CESA ends because of time-limiting.  I recently had a client who had his IRESA stopped for being a full-time student.  We checked and he did not appear to have been awarded credits for the weeks of the tax year after his ESA ended despite the fact he doubtless would still have satisfied the LCW test in that period (he’d been in SG immediately prior to his ESA ending - he didn’t have DLA unfortunately).

I think it would be wise for AmosP’s client to first request a pension forecast (to see how many years contribs/credits she has banked to date) and, in the event of a shortfall in qualifying years, apply after the end of the tax year for credits based on having LCW.  I think a backdated sick note would be enough as opposed to continuing to put in regular sick notes.  However, I doubt there’s a legal basis for making her undergo a WCA re future LCW (ie subsequent to her ESA ending) unless she has actually officially requested credits.  That’s different, of course, to her pursuing a retrospective WCA as per my last post.

It seems to be in time-limited CESA cases only that people are subsequently called in for medicals etc.  That owes more to the above DWP policy which is admittedly convenient for claimants (ie it means they don’t have to make yearly requests for credits following time-limiting) but legally dubious given the clear terms of the Credits Regs 1975.

And, in case it wasn’t clear from my last post, I think AmosP’s client should request a MR of the decision ending her ESA.  I mentioned in another post recently that the effect of Reg 3ZA D&A appears to be to remove any time limit for making a MR (allowing a MR application to be grounded on official error for example).  Whilst a Tribunal of Commissioners in R(IS)15/04 had held that a refusal to revise for official error did not extend the time limit for appealing, Reg 3ZA appears to do just that and open up the front door to an appeal.  Its draftsman may have overlooked an important old law: the one of unintended consequences.