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UC medical assessment - can it be discounted on anything other than medical evidence?
Going to be brave and respond (because I am not 100% sure I have this right) - am happy to be corrected by someone more knowledgeable!
I believe it works like this… If the client has weekly earnings equal to, or exceeding the weekly earnings threshold of 16 hours x NMW a referral for a WCA can only be made if they are entitled to one of the following:
- DLA
- PIP
- AFIP
- AA
Someone with weekly earnings equal to, or exceed the earnings threshold and who are not entitled to one of those benefits will not be referred for a WCA. Someone with weekly earnings below the threshold can be referred for WCA.
Your client ceased to provide a Med3 cert from 12.12.16 and then worked (earning 16 x NMW) from 12.12.16 to 31.03.16 so during this period could not have a WCA and the WCA disallowance decision was dated 17.01.17. On the face of it this decision appears correct - unless of course your client has DLA or PIP etc.
Could your client submit a new Med3 (perhaps backdated to 01.04.17 when work ended) such that she can now be re-referred for WCA?
Under Reg 41(2) of the Universal Credit Regulations 2013, the DWP has no power to conduct a WCA on someone who is “in work”, subject to exceptions. Where Reg 41(2) applies, the result is that the claimant is treated as being capable of work. The decision is that Reg 41(2) applies to your client so they are capable of work.
The question which Reg 41 doesn’t answer - and which is extremely relevant in your client’s case - is when does the claimant need to be “in work” to prevent the WCA being carried out. Is it the date of the referral (when your client was out of work), the date of the medical examination (when your client was working) or the date of the decision (when your client was out of work again)?
The decision notice assumes that it is the date of the medical examination - and therefore because your client was working on the date of the medical examination, the WCA was invalid under reg 41 and this determination needs to be made.
However, I would argue this is wrong. The WCA and the medical examination are different things. The WCA is conducted by the DM under Reg 41 and the medical examination is merely evidence to support the WCA under reg 44. I would argue that the important question is when the Reg 41 determination was made - which in your client’s case was the date of the decision in May.
So in the first instance, I would be asking for a late MR on the basis that this is an incorrect application of Reg 41.
Amen to you Elliott - the ‘when’ was the bit bugging me but I couldn’t put it into words as you did :)