Wood for trees - payment of WRAC

Client was getting income related ESA, probably incorrectly. Placed in WRAG by tribunal. ESA stops as partner in remunerative work (probably should always have been “nil” for that reason but extent of decision not clear)

She reclaims best part of a year later (over 12 weeks for linking purposes), and DWP will not pay work related activity component for first 13 weeks.

We appealed on the basis that she was placed in the work related activity group by a tribunal in the previous claim and the period of limited capability for work had never ended - entitlement ended because partner in remunerative work.

HOWEVER, if earlier claim was disallowed in its entirety (i.e. retrospective disallowance, as partner always in remunerative work) are DWP right, because assessment phase only starts with the first day for which she is ENTITLED to ESA, which is on the new claim (section 24(2) of the Welfare Reform Act).

Equally, if the decision on the earlier claim was not retrospective, and client was entitled for over 13 weeks on that claim, should she be entitled from day one of this claim because the assessment phase ended, and her period of limited capability for work didn’t end as it was her husband who was working - I think she was awarded credits throughout, but I will have to check)

If original ESA award revised then effect is that she never had any entitlement so no linking with old award and WRAC not payable until wk14 of new award.

If original decision superseded/not retrospective then effect is that she was entitled to ESA under old award until effective date of the decision superseding it.  However, old and new awards still do not link because latter is made more than 12 weeks after former so Reg 7(1A) of ESA Regs not satisfied.  But for 7(1A) I agree it would have been a linked case under case 1 of Reg 7(1B):

“7(1A) .... a relevant linked case is a case mentioned in paragraph (1B) where a period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1).

(1B) Paragraph (1A) applies to the following cases–

(a) case 1 is where–

(i) the claimant was entitled to an employment and support allowance
(including entitlement to a component under sections 2(2), 2(3), 4(4) or
4(5) of the Act) in the earlier period of limited capability for work, and

(ii) the previous period for which the claimant was entitled to an employment
and support allowance was terminated other than by virtue of a
determination that the claimant did not have limited capability for work;..”

Sovietleader, just re-read your post.  My understanding is that the client’s period of Limited Capability for Work (pLCW) under the old award ends despite the fact that a decision on her LCW was never made, ie because partner’s earnings/hours ended the award.

The law is confusing at present.  I think the consensus that has emerged is that whilst you can never be in a pLCW without having LCW, you can have LCW without necessarily being in a pLCW.  For example, as I’m sure you know, section 1B WRA makes continuing to have LCW one of the conditions for re-qualifying for CESA following the time-limiting of an earlier CESA award.  Separately, a claim for credits based upon having LCW obviously also requires that you demonstrate (whether via a sick note or ESA medical) that you have LCW.  However, neither the credits-only claimant nor the section 1B beneficiary (during any period of non-entitlement to ESA) is in a pLCW.

The definition of pLCW is found in Reg 2(1) ESA Regs as follows:

“period of limited capability for work” means… a period throughout which a person has, or is treated as having, limited capability for work, and does not include a period which is outside the prescribed time for claiming as specified in regulation 19 of the Social Security (Claims and Payments) Regulations 1987.”

It’s the reference there to a pLCW not including any period outside the prescribed time for claiming which implies that a pLCW only runs during an award of ESA proper, ie one which required a claim under Reg 19 C&P Regs.

For that reason even if your client’s old award was not retrospectively cancelled and instead was ended from, say, week 20 of that award, she didn’t re-claim ESA for more than a year after that.  So the pLCW under the old award ended at wk20 and there’s more than 12 weeks between that and the start of the new pLCW over a year later.  Hence, Reg 7(1A) ESA Regs (see my earlier post) is not satisfied and payment of the WRAC under the new award rightly starts at wk14 of that award.

Tom

Many thanks for your posts on this - great help to getting my thoughts clearer on this.

As it happened, DWP rang and raised potential issue of large overpayment on last claim if they dug any deeper, and client agreed to leave this be - as she has now been placed in Support Group from September 2011 as part of revsied decisions, she is happy with that.

Cheers

Brian