Forum Home → Discussion → Work capability issues and ESA → Thread
Payment from the 13th week after an ESA claim
Can anyone clarify the current law concerning this?
First thing this morning I had a call from a support worker who said that his clients were only getting the increases from the date the WCA decision was made and I have some recollection of a recent UT decision saying something similar.
Half an hour ago I had a call from another client who (after waiting more than a year to be assessed) has been back paid to what looks like the 14th week of the claim. The only difference I can see is that the latter client has gone into the SG under the ‘Special Rules’ having developed a much more serious condition long after the original ESA claim.
Can anyone clarify whether or not a claimant is entiled to the WRAG or SG amount from the 14th week after the claim or only from the date the WCA decion was made?
Regulation 7 of the Decisions and Appeals Regulations covers the date a supersession takes effect from, with 7(38) covering this situation:
(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.
So whichever group the claimant goes into, a successful WCA that moves them off assessment rate takes effect from the 14th week.
Confusion is probably not helped by the DMG containing this information.
44016 Where a LCW determination has not been carried out within the 13 week period referred to in DMG 44011, the assessment phase will end once it has been determined that the claimant has LCW either by
1. a LCWA being carried out (see DMG Chapter 42) or
2. the claimant being treated as having LCW (see DMG Chapter 42)
Example 1
After serving waiting days on 29, 30 and 31 of May, Claudia has been entitled to ESA from 1 June on the basis of medical evidence supplied by her GP. A LCWA is not carried out until 10 September. On 12 September the DM determines that Claudia has LCW. Claudia’s assessment phase ends on 12 September.
However, the DMG does go onto state more clearly:
The date to which entitlement to a component is backdated
44650 The backdating of a component is to the day which would have been the first day of the main phase if the claimant’s assessment phase had actually lasted 13 weeks. This means that the award of a component will take effect from the 92 day of entitlement to ESA.
This also applies where the assessment phase is made up of linked periods.
Example 1
Toby’s award of ESA begins on 1 May. There is a delay in carrying out the test for limited capability for work and Toby isn’t finally assessed until 16 August. Following the assessment the DM decides that Toby is entitled to the support component and this is backdated to 31 July. This is because this is the day that would have been the first day of the main phase for Toby if the assessment phase had actually lasted 13 weeks.
Which is pretty straightforward yet often seems to be ignored….
The assessment phase for those on ESA under universal credits ends when the determination is made - whenever that may be! This is due to Reg 5 ESA Regs 2013 No. 379. I believe this has been introduced to stop the earlier argument that clients should receive the WRAC after week 13 whether assessed or not.
So whichever group the claimant goes into, a successful WCA that moves them off assessment rate takes effect from the 14th week.
Exceptions to this should include the OP’s second client, who fell under special rules. This should have allowed SG arrears back to the start of the claim, not just to week 14.
Yes I believe it is the case for people who qualify under the special rules who will get their extra component from the outset of their claim. However the usual Reg 30 applicant (production of sick note) under UC will have their assessment phase lengthened to whenever the determination is made ie it will not be back dated to week 13 unless the determination itself is made within or at the end of the 13th week.
However the usual Reg 30 applicant (production of sick note) under UC will have their assessment phase lengthened to whenever the determination is made ie it will not be back dated to week 13 unless the determination itself is made within or at the end of the 13th week.
Great.
Can you reference that please?
I am struggling to see how people on either new style ESA(c) and/or UC don’t get their component backdated to the 14th week (or next UC assessment period). The UC Regs, the new-style ESA Regs and the ESA, JSA, PIP and UC D&A Regs (especially Reg 35(7) of those regs) all seem to take it back to the 14th week if the assessment is delayed.
Or have I completely misunderstood the point being made?
FAO Billy - people who are terminally ill will receive payment asap as per Reg 7 of the new regs. Things get very complicated as per previous thread where persons are treated as having LCFW.
I am struggling to see how people on either new style ESA(c) and/or UC don’t get their component backdated to the 14th week (or next UC assessment period). The UC Regs, the new-style ESA Regs and the ESA, JSA, PIP and UC D&A Regs (especially Reg 35(7) of those regs) all seem to take it back to the 14th week if the assessment is delayed.
Or have I completely misunderstood the point being made?
I would agree with you on this point, re: reg 35(7) meaning situation remains as now essentially.
Things get very complicated as per previous thread where persons are treated as having LCFW.
JM - Sorry to be a pain. What previous thread are you referring to and what gets very complicated?
Page 8 of this forum.
Right, so you are referring to Tom H’s innovative argument that someone who has been kept waiting longer than 13 weeks is entitled to a component forthwith pending the delayed assessment, and if that assessment finds them not LCW they have had a windfall and serves the DWP right for taking so long. New-style ESA Regs and UC Regs close off that possible loophole.
Otherwise it’s as you were: whenever the assessment is finally carried out, you get arrears of whichever component you were due. Nothing’s changed there.
Is that it?
The argument was actually mine however the argument was overturned in 2014 UKUT 42 AAC & 2013 UKUT 477 ACC in that if clients were found to have LCFW after week 13 then the payment of the WRAC was backdated to week 13. The new Regs stop this because as per previous thread payment of the component is based on when the assessment period actually ends and the new Regs state the assessment phase ends upon the determination (whenever this may be ) and therefore will not be back dated to week 13.
The argument was actually mine however the argument was overturned in 2014 UKUT 42 AAC & 2013 UKUT 477 ACC in that if clients were found to have LCFW after week 13 then the payment of the WRAC was backdated to week 13. The new Regs stop this because as per previous thread payment of the component is based on when the assessment period actually ends and the new Regs state the assessment phase ends upon the determination (whenever this may be ) and therefore will not be back dated to week 13.
I’m not sure that I agree with your interpretation. This is why.
We have The Universal Credit Regulations 2013, which has the following section:
Period for which the LCW or LCWRA element is not to be included
28. (1) An award of universal credit is not to include the LCW or LCWRA element until the beginning of the assessment period that follows the assessment period in which the relevant period ends.
(2) The relevant period is the period of three months beginning with—
(a) if regulation 41(2) applies (claimant with weekly earnings equal to or above the relevant threshold) the date on which the award of universal credit commences or, if later, the date on which the claimant applies for the LCW or LCWRA element to be included in the award; or
(b) in any other case, the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.
So a relevant period is defined as being 3 months (equivalent to the current 13 weeks) from the date that a claimant provides evidence of their incapacity for work - with a new UC claimant, they would supply the fit note at the date of claim, therefore reg 28(2)(b) applies. Therefore, it is the assessment period following the passing of the relevant period, that can only be an assessment period within which a LCW/LCWRA component can become payable.
Then we have The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. This has the section:
Effective dates: Secretary of State decisions
35. (9) In the case of universal credit, a superseding decision made in accordance with regulation 26(1) that embodies a determination that the claimant has limited capability for work or limited capability for work and work-related activity takes effect—
(a) in a case to which regulation 28(1) (period for which the LCW or LCWRA element is not to be included) of the Universal Credit Regulations applies, from the beginning of the assessment period specified in that paragraph; or
(b) in any other case, from the beginning of the assessment period in which the decision (if made on the Secretary of State’s own initiative) or the application for a supersession was made.
Thus, where a decision is to be superseded because an assessment of LCW has been made, this states that the new determination takes effect from the beginning of the assessment period stipulated in reg.28(1) i.e. from the assessment period following the relevant period, which we have seen is 3 months. Therefore reg.35(9)(a) clearly allows for the assessment period following the 3-month period to be the date from which LCW/LCWRA component would become payable.
For the record, this is reg.26 referred to above and I see nothing here that challenges this interpretation.
Medical evidence and limited capability for work etc.
26. (1) An employment and support allowance decision, a personal independence payment decision or universal credit decision may be superseded where, since the decision was made, the Secretary of State has—
(a) received medical evidence from a healthcare professional or other person approved by the Secretary of State; or
(b) made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 16, 21, 22 or 29 of the Employment and Support Allowance Regulations 2013 or Part 5 (capability for work or work-related activity) of the Universal Credit Regulations.