PIP review decision has directly affected ESA claim without a WCA first

Hi all,
I’ve visited a client today whose PIP review has come back as a loss of award (6 pts DL and 4 on Mobility) - two days after this decision letter she has been sent a letter from ESA saying that due to a ‘change in circumstances’ her ESA has been changed from support group to WRAG group and there is an expectation that she has a work focused interview soon- this is without any ESA review forms or recent work capability assessment.
It seems the move to abolition of the WCA is already in practice!
Has anyone else experienced this ?

Well it won’t be the PIP decision itself, but the grounds for the reduced PIP award that DWP has taken as a evidence that her conditions have changed/improved.

Say you were awarded PIP Mobility for a broken leg, and LCWRA on the same basis - PIP HCP report states leg all healed. It would be consistent to conclude that LCWRA can’t continue to be awarded on that basis either.

Typically in our work these cases end up on our desks because the PIP award shouldn’t have changed in the first place, and thus the following ESA decisions seem all the more ridiculous. 

EDIT: In practical terms, in addition to MR/appeal of the ESA decision, it might be advisable for your client to report health changed/worse to DWP and submit fit-notes/evidence to this effect to trigger a new WCA and a review of her claimant commitment. Otherwise they can be quite insistent in arguments that since her health has improved they can expect all sorts of things from her.

How did you get on with challenging this decision?

I’m looking at a similar case, similar date of decision coming up to 12/13 months ago where PIP mobility removed and ESA reduced to LCW seemingly without ESA50 and WCA. Friend was unaware that ESA-C would exhaust soon. Also told by DWP they would change ESA decision if she wins her PIP appeal - clear misdirection.

I looked at ADM U2770-U2786 and can’t see that a change of award is allowed without a medical services referral - so would this be official error due to failure to follow guidance?

JennyRussell - 29 February 2024 02:27 PM

How did you get on with challenging this decision?

I’m looking at a similar case, similar date of decision coming up to 12/13 months ago where PIP mobility removed and ESA reduced to LCW seemingly without ESA50 and WCA. Friend was unaware that ESA-C would exhaust soon. Also told by DWP they would change ESA decision if she wins her PIP appeal - clear misdirection.

I looked at ADM U2770-U2786 and can’t see that a change of award is allowed without a medical services referral - so would this be official error due to failure to follow guidance?

The ADM does not have the force of law

Reg 35 of the ESA Regs 2013 provides

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related activity
35.—(1) Where it falls to be determined whether a claimant has limited capability for work-related activity, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination

Similarly Reg 33 provides

Information required for determining capability for work-related activity
33.—(1) Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for work-related activity is–
(a) any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and
(b) any such additional information as may be requested.

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work-related activity without the information specified in paragraph (1)(a), that information must not be required for the purposes of making the determination.

The operative word in Reg 33 and 35 is “may” and not “shall”.

This effectively means that its down to the decision maker whether or not the referral is made

I think the only option here would be for the client to appeal both the PIP decision and the ESA decision

The update is that ESA have rolled over very quickly - I would say suspiciously quickly - and will now pay LCWRA going forward.

They will not pay arrears as the decision was just over 13 months ago. I suspect this has been treated as a timeous ESA time limiting reconsideration although if treated as a supersession that could of course be backdated up to 13 months subject to consideration of reasonableness.

It may be possible to evidence that a valid in time reconsideration request was gatekept.

My biggest arrears payment went to a client who was found fit for work, verbally requested MR, told decision cannot be changed unless he provides reasons and this “advice” was recorded in JA110 (for those of us who have worked for the enemy!) much to my surprise on receiving SAR.  Client eventually received £23k which was 4 years’ underpaid ESA/ UC.