Got a tribunal on Monday 3rd Oct, where DWP have applied PCA and claimant failed due to lack of points.

However, claimant was working for at least 8 weeks, for at least 16hrs pw, in the last 21 weeks before his claim for ICB. Hence, OOT would apply for first 28 weeks of claim. Problem is, DWP made their decision, using PCA, after 23 weeks.

Our argument is decision is in error as OOT still applicable.

(DWP made their error I think because claimant, who says he is not good with forms, did not indicate on his claim that he had had a job in last 21 weeks - we've got the evidence to show otherwise (I hope!))

But something is nagging at my (poor) memory: I think I remember a CD where I think it was decided that although the PCA should not have applied at the time of the decision, nevertheless, the tribunal could take it in to account to determine incapacity after the OOT ran out.

I've looked everywhere for this (OSSC, Briefcase, Bonner) and fortunately cannot find such a decision.

If anyone knows of this CD, please let me know so I can read up on it beforehand. Otherwise, feel free to advise me I must have dreamt it all up!

Paul

Have not come across any case law as you suggest. Recently took a case to tribunal on this very issue. Tribunal allowed the appeal and ruled that the DWP's supersession was fatally flawed and fully accepted the argument I submitted, which is reproduced below.

Regards
Paul

Response to the Secretary of State’s
Submission to the Tribunal


Re –

Ref’ No –

Appeal Tribunal – Date of decision under appeal –

We respond to the Secretary of State’s submission of 4/5/05 in the above case.

1. We acknowledge receipt of the Secretary of State’s further submission in the above case. The SoS has conceded that the Personal Capability Assessment was applied too early and has re-instated benefit for the period ending on the earliest date which the PCA became applicable. We thank the SoS for that concession.

2. However, we submit that the SoS has not gone far enough. By applying the PCA at the date that the SoS did, the PCA was thus unlawfully applied. Therefore the PCA is invalid and has no legal force. It cannot therefore stand. The SoS cannot merely juggle the decision stopping benefit to make it apply from a different date, if that decision is based on an invalid PCA. A decision stopping Incapacity Benefit in Mrs ………’s case can only be based on a legally valid incapacity for work determination based on a legally valid PCA, that is a PCA that was applied on or after a date that the statutory provisions allow.

3. Therefore, we submit that until a new PCA is applied to Mrs …….. (with or without further medical examination – the medical examination is not of itself the PCA) and a new outcome decision issued then Mrs ………’s Incapacity Benefit should be re-instated.

4. The SoS has to sit down on or after a date no earlier than ………, apply the PCA, make an incapacity for work determination and issue a written decision to Mrs …… on her entitlement to Incapacity Benefit. To date the SoS has not done so. Therefore to withhold continuing entitlement to Incapacity Benefit to Mrs ……… is, we submit, unlawful.

Paul Neville – Appellant's representative 10/5/05

My thinking exactly! Thanks for the sub. Paul!