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When is a 13 week assessment phase NOT 13 weeks ?
I have a client who has been receiving the assessment phase rate of ESA since March 2013…..he has failed to attend one medical - and a full explanation was provided , for which no reply was ever received- but his £71.70 has been continuous.
I believe he has reasonable grounds to be in the SG but cant get there until they decide to assess him or decide they don’t have to….ESA staff have stated very clearly… it’s now at the mercy of ATOS…but still silence…...I’m aware that any relevant award will be backdated but can any direction be given under these circumstances ????
any advice welcome…
Have you ( or client) tried calling ATOS to request an appointment? Everyday, usually works…
I have recently come across 2 clients who have been in ESA assessment phase for almost 12 months and have had no ESA50 or any communication from ATOS.
one is over 25 and the other is under 25.
it should be interesting to see what DWP and ATOS have to say.
I am aware of one case (a friend rather than a client) where ESA was claimed from 18th June 2013, ESA50 completed and returned at end of July, nothing since. ESA continues in payment at assessment rate. A phonecall to ATOS during September drew the response that assessments were delayed “for a short time” due to backlogged work, and that they would be in touch “shortly”.
We wait with baited breath!!!
We had a similar case where someone had been waiting well over a year for a WCA medical and their (C)ESA had stopped. Used ATOS complaints procedures, and benefit re-instated almost immediately, with customer being put in Support Group (all without a medical). Additional evidence from GP confirming one of SG criteria applied no doubt helped.
As you may be aware I previously argued at the Upper Tribunal (CE/3732/2012) that if someone went past 13 weeks without having a medical then they should be paid the WRAC until it is determined that they are fit for work if this being the case. Unfortunately Judge Bano didn’t grasp the argument as in paragraph 1 he wrongly asked…
“Regulation 4(1) of the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”) provides for the assessment phase to end 13 weeks after it begins, but that is subject to exceptions contained in regulation 4(2) of the 2008 Regulations. The question in this case is how those exceptions apply in a case where no limited capability for work DETERMINATION has been made before the end of the thirteen week period.
However in relation to another identical case I have convinced Judge Jacobs that there is argument that Judge Bano’s decision can be distinguished as again the argument to be answered is should the WRAC be paid after week 13 where no ATOS MEDICAL has occurred (and not a determination). The hearing is in the Upper Tribunal on 27/1/14 for your info.
As you may be aware I previously argued at the Upper Tribunal (CE/3732/2012) that if someone went past 13 weeks without having a medical then they should be paid the WRAC until it is determined that they are fit for work if this being the case. Unfortunately Judge Bano didn’t grasp the argument as in paragraph 1 he wrongly asked…
“Regulation 4(1) of the Employment and Support Allowance Regulations 2008 (“the 2008 Regulations”) provides for the assessment phase to end 13 weeks after it begins, but that is subject to exceptions contained in regulation 4(2) of the 2008 Regulations. The question in this case is how those exceptions apply in a case where no limited capability for work DETERMINATION has been made before the end of the thirteen week period.
However in relation to another identical case I have convinced Judge Jacobs that there is argument that Judge Bano’s decision can be distinguished as again the argument to be answered is should the WRAC be paid after week 13 where no ATOS MEDICAL has occurred (and not a determination). The hearing is in the Upper Tribunal on 27/1/14 for your info.
What was the outcome?
Assessment phase does not end until a decision about LCW has been made by decision maker - see -
So if the DM sits there and does nowt there is nothing anyone can do under the Regs? Maladministration complaints perhaps? I wonder if a FoI request would reveal how many people are in this situation?
Quick Query : If a client is in assessment phase for a year due to Atos dawdling, and 9 months ago would have met schedule 2 or schedule 3 descriptors for ESA, how does that work if in the last 9 months their health has improved to the point where they now dont qualify?
I have a client who is still on assessment rate after a year, but now probably wont get 15 points if he had his WCA tomorrow due to improvement in health, but after 13 weeks would have done so if assessed earlier. He reckons he will struggle to get any medical evidence to confirm that 9 months ago he had LCFW/RA
The phrase “where it falls to be determined whether someone is incapable of work” was held in R(IB)8/04 to refer to each day of the claim. By extension, the equivalent phrase found, eg in Reg 23 ESA Regs, is referring to each week of the claim (ESA being a weekly benefit unlike IB which was daily). It follows, in my view, that where a medical is done only at the 12 month point, the DM is still legally obliged to consider the LCW question re each week from week 14 onwards. I think it’s fair, however, for the DM to assume unless told otherwise by the claimant that the medical examination findings apply to the whole of the period. That puts the onus on the claimant to say he was worse earlier on without necessarily accepting that he is no longer LCW at the date of medical (after all, he is still getting a current sick note).
The standard question that tribunals ask claimants at the beginning of the hearing, namely, how are you today compared to the date of the decision?, should in my view be re-phrased “compared to week 14 (whatever date that is in the individual case) onwards” as that is the period, at least in respect of new ESA claims, that the LCW assessment would be effective from if the appeal was successful.
The above points were not raised in the caselaw referred to at post 7 above. And the claimant’s rep in that case (I know because he re-hearsed his arguments in a separate thread) argued that the claimant would very much lose out on arrears of the WRAG unless the assessment phase ended at wk14 even if a medical had not be carried out at that point. And it seems Judge Jacobs just accepted that that was correct, ie that he would lose out, the SSWP not offering any argument against it. Hence the final paragraph of the judgment. But, with respect, that didn’t address the need when making a WCA to consider all of the weeks. The medical examination carried out at, say, 12 months is just one piece of evidence which could be rebutted by other evidence, eg that peron was worse earlier on. That evidence does not need independent corroboration provided it is believable. My advice would be to appeal any WCA knock back in the circs you mention and let the tribunal decide whether you might have been LCW for some of the earlier period, ie it could partially allow the appeal, making if need be more than one supersession decision during the period wk14 - date of decision under appeal.
[ Edited: 21 May 2014 at 02:52 pm by Tom H ]I have one as well, claimed ESA in June last year, completed ESA50 soon after, heard nothing. I advised customer to contact DWP as he was considering returning to work, the condition had improved but could have flare ups. He did, and hey, got a date for medical, however he had been offered a job and would have started work. Initially told he could not attend, then he could, then ATOS wrote out and cancelled. I have advised him to insist he can attend medical and he has good evidence of how the condition affected him until very recently when he was able undergo a new course of treatment and has responded well, although could find that he cannot continue working.