Employment & Support Allowance - Payment of Work Related Activity Component

Hi GSmart

I don’t think you understand my point.  I’m talking about those who would fail the WCA were they to sit it within 13 weeks as should happen.  Those people transferring from JSA to ESA in those circumstances would still experience exactly the same large drop in income (ie loss of disability premium where they’re receiving DLA at the point of transfer). 

There’s also the counter argument that those people who get worse just before sitting their delayed medicals actually benefit by the delay (because they stand a greater chance of success than they would had they sat it at week 13).  Equally, those who sit, and fail, the WCA within 13 weeks or not long after also lose out under JM’s argument because they stay on the assessment rate whilst those whose determinations are delayed stay on the WRAC.  That’s an anomaly created by JM’s argument.  However, that’s not to say the argument is wrong.  I’m actually pleased your client got his WRAC for a lot longer than he should.  The issue is whether Reg 4 is clear in ending the assessment phase if an assessment of LCW has not been made at the end of week 13.  I think it’s definitely arguable that it is clear.  So good luck to JM.

FAO Tom,

Your recent post - “There’s also the counter argument that those people who get worse just before sitting their delayed medicals actually benefit by the delay (because they stand a greater chance of success than they would had they sat it at week 13).  “

Surely it’s better to get the extra money straight after week 13 than gamble passing the medical at a later date. Correct me if I’m wrong where client is found fit for work but his/her health substantially worsens then can they make a fresh claim for ESA based on the worsened condition. Secondly yes it is correct that the DWP could examine someone within the 13 weeks and just lay back for months on end before making a decision NB if they had been found fit for work then it’s in the DWP’s interest to make that decision otherwise such delay of announcing the medical assessment could be open to JR or complaint etc.

J.Mckendrick - 16 July 2013 11:55 AM

..Surely it’s better to get the extra money straight after week 13 than gamble passing the medical at a later date. Correct me if I’m wrong where client is found fit for work but his/her health substantially worsens then can they make a fresh claim for ESA based on the worsened condition. Secondly yes it is correct that the DWP could examine someone within the 13 weeks and just lay back for months on end before making a decision NB if they had been found fit for work then it’s in the DWP’s interest to make that decision otherwise such delay of announcing the medical assessment could be open to JR or complaint etc.

Again, I don’t think you understand the point I’m making.  You could equally say best not gamble failing the WCA at week 13 when you could sit back and have the WRAC anyway if the WCA is delayed.  Those who have LCW have a genuine grievance about a delayed WCA which I mentioned in a previous post (fortnightly payments of the WRAC/support component from week 14 are usually better than receiving a lump sum representing arrears of the component later on). 

Re-assessment for substantial worsening under Reg 147A has already been covered in a previous post (we’re now going round in circles).  Your argument largely applies to those whose first WCA is delayed beyond 13 weeks, rather than to those who have failed their WCA and are receiving ESA pending appeal.  The latter claimants can be re-assesssed if there’s substantial worsening under Reg 147A.  I’m talking instead, as you have been for the majority of this thread, about those who are waiting for their first WCA and whose medicals are delayed and who, as a result of your argument, get the WRAC from wk 14 until they sit the WCA.  And who, just before that WCA, get worse.  Those people have a better chance of passing than had they sat the test at week13.  That’s just a fact which doesn’t damage your argument in the same way that it’s a fact that those people who get better just before the WCA could lose out as a result of the way the current law is applied.

And let’s not forget that it’s the application of the law by the DWP rather than the substantive law itself that’s the problem here.  In fact, there’s a possibility that the UT might find that the examples you gave in a previous post, ie those who sign off prior to sitting the WCA or those, like GSmart’s client, who get better just before the WCA should not be penalised under the proper interpretation of the law.  As stated previously, a Dm/tribunal deciding the WCA could find, in the same decision, that the person had LCW from wk1 to, say, week 42 and stopped having it only from week 43 onwards (ie, it could apportion the component).  In other words, achieve exactly the same result with GSmart’s client using the current law and without resorting to your interpretation of Reg 4.

The tribunal/DM can, after all, take into account all the facts obtaining at the date of the decision under appeal.  The law provides for LCW status to be apportioned if the DM/tribunal sees fit.  It shouldn’t really require your argument to ensure that.  It’s the way that the law is being applied by the DWP that’s the problem rather than the law itself.  The UT could find that inadequate application of the current law by DWP is not a good reason for accepting your argument should it come down to the UT having to make a purposive construction of Reg4.

I’ve regularly wished you well and, with respect, I don’t really have the time to comment any further. If you count the posts, I’ve probably contributed as much as anyone to this thread and I’ve kept any criticism constructive and offered support for your argument from an early stage. 

I agree with Tony’s comment that’s it’s been a hard sell for you.  I repeat his praise for that.  Respect also for exposing your argument to peer review.  At the same time, however, I hope the comments from everyone have helped prepare you for any counter arguments as well.  It’s a luxury in a way to have advisers from the across the country offering refinements or advanced notice of any counter arguments to your argument.  It’s testament to the quality of your argument that it remains unchanged from your first post.

Would love to be a part of this recently discovered thread, but I am not sure what its all about. Simply put, what is the key issue? Do I have to read all 183 contributions? Is it really that vital? Jarndyce v Jarndyce?

Having used John’s argument, It has been successful at a 3 tribunals to date and have another one later today, which I believe will go the same way.

What has been your success?

FAO Steve Johnson - Firstly you don’t have to read all 183 posts as the first post is fairly explanatory which makes it clear the success that Bryan R and others have had on behalf of their clients. With regards Jarndyce v Jarndyce, Dickens wrote…
“This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means.” Just as well The First Tier Tribunals have read through and indeed understood the scarecrow of a suit…”

FAO Steve Johnson

The success has been for my clients, together we have persuaded the FTT to accept the argument that as of 13 weeks and one day to pay the Basic ESA rate plus the wrag rate. Using the ‘McKendrick argument’ and variants of, have been and continue to be successful at FTT, without challenge so far. If ATOS and DWP have not undertaken the medical after the 13 weeks expires then the ‘McKendrick Argument’ is a sensible way forward and thus far a successful one.

Sorry to harp on about this thread ( I understand people have had a belly full) however has the Government stopped the loop hole of the Reg 4 argument (and caused another) with the introduction of Reg 5(1)(2) & (3) ESA Regs 2013? If so what’s the point talking about a 13 week assessment period. Clients who are examined lets say 9 months from initial claim whose health improves over time will never get the WRAC. Secondly this new Reg will allow those who are examined within 13 weeks to get the WRAC after week 13 up until the determination that finds them fit for work if this being the case. However after week 13 if the applicant has not been assessed then the DWP can take as long as they like in which to do so.

I am very grateful for the clarification - thanks!

J.Mckendrick - 04 July 2013 02:46 PM

..to those interested this argument will be heard at the UT on 2/8/13..

And the outcome was….

I await the decision like yourself but Judge Bano was concerned that those who were terminally ill could have their WRAC sometime after those treated as limited capability for work as per Reg 30. NB The new 2013 ESA Regs changes things completely as these Regs now enforce the DWP ‘s original and incorrect interpretation of the original Reg 4 argument as it now clearly states that anyone not examined within 13 weeks will wait indefinitely for their assessment period to end as their assessment phase will end after the determination which is obviously after the ATOS medical. So therefore the DWP will be in no rush at all to examine people. NB these new regs produce another anomaly in that those examined within the 13 week period will have their assessment phase ended at week 13 when awaiting the determination itself. Therefore those applicants who eg scored below 15 points would be entitled to the WRAC from week 13 up until the date of the determination itself. Therefore with these applicants it would be in the DWP’s interest to make the determination asap to minimise the WRAC payments. Obviously those found unfit for work will continue to receive the WRAC after week 13 and after the determination.

FAO Tom H and others, this is what I have received. Do you think the Upper Tribunal has actually answered the question and understood the argument. Any points of law re possible appeal would be appreciated. JM

Many thanks Tony for your reply - at paragraph 8 Judge Bano states the regulations are being ‘redrafted’ - they are actually in as below and as you can see the whole argument has been addressed as now the assessment phase will continue until a determination is made unlike the 2008 regs.

The end of the assessment phase

5.  (1)  Subject to paragraphs (2) and (3) and regulation 6, the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act.
(2) Where paragraph (3) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.
(3) This paragraph applies where, at the end of the 13 week period referred to in paragraph (1)—
(a)the claimant has not been assessed in accordance with a limited capability for work assessment; and.
(b)the claimant has not been treated as having limited capability for work in accordance with regulation 16, 21, 22 or 25

Tony Bowman - 07 October 2013 12:39 PM

..However, the core issue is the finding in paragraph 9 that ‘having been assessed’ is referring to the determination following assessment – which mirrors my first comment to this thread which is that ‘the assessment’ refers to the entire process from the sending of the ESA50 to the making of the determination…

Tony, with respect, I don’t think the judgment “mirrors” your initial view of Reg 4, a view which, you accept, you later, and rightly, changed anyway.  John will doubtless correct me if I’m wrong but it appears that the SSWP did not even attempt to argue that “having been assessed” was capable of being satisfied by, eg, the issuing of an ESA50.  It appears the SSWP implicitly accepted that the words “having been” meant that the assessment had taken place.  Judge Bano appears to agree (“a limited capability for work assessment having taken place” – para 9).

Judge Bano finds that “having been assessed in accordance with a LCW assessment” is a condition that must obtain (ie exist) “at the time when the LCW determination is made” rather than at the end of the 13 weeks (my emphasis). And that appears to be his reason for dismissing John’s argument.  But that finding is, with respect, hardly controversial.  Rather than being a reason, in fact, it seems no more than a statement of the settled law that the LCW determination is based on an assessment.  That wasn’t in dispute.  John wasn’t arguing that the LCW assessment must obtain at the end of 13 weeks; he was arguing that if it didn’t obtain then, and in the absence of a LCW determination, the assessment phase ended. 

The judge appears to be saying that, in effect, LCW assessment = LCW determination.  Consequently, because Reg 4(2) only applies where there has not been a LCW determination within 13 weeks, the judgment is effectively interpreting “having been assessed” in Reg 4(2)(a) as “not having been assessed”.  That is an astonishing bit of judicial intervention in my view.  It is exactly how the equivalent of Reg 4 in the new ESA Regs has, in fact, been re-drafted, ie by the insertion of the word “not”. 

The other error in my view is that the reasoning is based on a false premise, namely that those whom the judge refers to as “exempt” from the LCW assessment would be penalised if the respondent’s argument were accepted.  To be fair John you never sought to deny that.  In fact, you relied on the anomaly (ie, the draftsman had extended the assessment phase for all claimants who hadn’t had an assessment at 13 weeks, except for Reg 30 claimants whom he’d overlooked).  And I certainly never questioned that approach either (at least not until after your UT hearing was over and you reported back in this thread.)

However, as the above linked thread demonstrates those “exempt” claimants whom Judge Bano was, not unreasonably, concerned about are not, it turns out, penalised by your argument at all provided you define “limited capability for work determination” in Reg 4 as including determinations made under Regs 20, 25, 26, 29 and 33(2) in addition to a determination made under Reg 19. 

Although Judge Bano was using terminally ill claimants as an example only, that particular group is, in fact, not penalised at all given that Reg 7 ESA Regs provides that the assessment phase does not have to end in their cases before they can be awarded the support component.  That’s why terminally ill claimants can be awarded the SC from day 1, not even having to wait 13 weeks for it.

Notwithstanding the inclusion of Regs 20, 25 etc in the definition of LCW determination as contended for above, there would still be an anomaly, as Judge Bano identifies in para 8, between those who, despite having had their medical assessments within 13 weeks, have not received their LCW determinations by the end of wk13, and those who have received them.  The only reply to that is to point out that the Judge accepts himself that the numbers of those penalised in that way would be small and that the alternative is that the vast majority of claimants are penalised through the end of the assessment phase being decided by a postcode lottery, ie the length of the backlog at the ATOS assessment centre where your LCW assessment takes place and any further backlogs at the DWP pending its rubber stamping of said assessment.  If you can John I’d try to get legal assistance to appeal.