Support Group, work coach involvement

Cl already on legacy c-ESA (Support Group), has to claim UC. The UC assessment fails to include the appropriate LCWRA element, so they are being underpaid UC. [edit: to be clear, by this I mean that the UC calculation doesn’t include the correct elements for someone in the support group, not that the client failed any medical assessment]

The client is also asked to return a UC50, asked to provide sick notes, and given a standard claimant commitment to agree. When the client pushed back on all this, pointing out that they were in the support group, they were given a revised claimant commitment. The CC now has the specific jobsearch steps removed, but does still include that “I’ll attend and take part fully in all meetings with my work coach”, and “I’ll do everything that I can to find work or earn more”.

I realise that there is a lot wrong here, flowing from UC’s error in not recognising the support group status. I was wondering, should (or can) someone in the Support Group actually have a ‘work coach’ at all? Or is that too a holdover from the assumption that the client was fit for work?

Hi Jon,

Your client should be in the ‘no work-requirement group’ in my view so the work coach I believe should not apply, i.e. no work-focused interviews BUT…. here is the thing…

Your client falls under section 19 of The Act (i.e. Welfare Reform 2012) which tackles claimants subject to no work requirements. The section 19 of the Act is referred to in section 89 (1) of UC regulations 2013.  As per section 19 of the Welfare Reform 2012, this section 89 also refers to claimants subject to no work-related requirements. In 89 (1) however, it effectively seems to be totally altering the section 19 of the Act to an extent that one wonders why it refers to it specifically if it doesn’t intend to uphold the principles embedded in it!...

Section 89 (I quote) “A claimant falls within section 19 of the Act - claimants subject to no work-related requirements - if -”... and then it totally omits 19 (2) (a) of The Act… by magic it disappears, namely ” the claimant has limited capability for work and work-related activity”

It totally ‘glosses over’ the basic of the Section 19 of the Welfare Reform Act it refers to, namely section 19 (2) “a claimant falls within this section if - (a) The claimant has limited capability for work and work related activity, but sort of reiterates (b) the claimant has regular and substantial caring responsibilities for a severely disabled person…etc.”

I have been grappling with this with cancer patients in treatment (particular in chemo, radiotherapy, due to have another operation etc.) My recourse currently (I am trying but JCP will not listen!) is that it is “unreasonable” to expect people who fall under some sections of ESA Regulations 2013 to ratify a Claimant’s Commitment that stipulates anything than ‘no work requirement’.

However, I would greatly appreciate if others could comment. I would dearly see a Judicial Review on this point if it is at all possible. How reasonable can it be to expect a claimant who has been declared 1) unfit for work by their GP / Consultant etc AND 2) declared to be LCW WRA by the limited capability for work Assessment i.e. unfit for work-related activities by the DWP/ JCP, to be then forced to be put in any other group then the ‘no work requirement group’?.. as in section 19 (2) (a) of the Welfare Reform 2012.

With cancer patients I will stand up to this using Section 16 (b) of the UC regulations 2013 which supports the fact that there are exceptional circumstances in which it would be unreasonable to expect a claimant commitment! this I will double up with part 5, Reg 31 (1) of ESA Regulations 2013, in which cancer patients who are terminally ill, in treatment or recovery from treatment (chemo / radiotherapy) or are expected to require treatment within 6 months after the date of the determination of capability for work-related activity, are de facto declared to be LCWRA (or LCW & WRA).

Now if your client had been declared to have LCWWRA under ‘exceptional circumstances’  e.g. such as
Regulations 35 (Exceptional Circumstances) of the ESA Regulations 2013 on the following grounds:

(2)  A claimant who does not have limited capability for work-related activity in relation to 34 (1) is to be treated as having limited capability for work-related activity if –
(a)  The claimant suffers from some specific disease or bodily and mental disablement; and
(b)  By reason of such disease or disablement, there would be a substantial risk to the mental and physical health of any person if the person were found not to have limited capability for work-related activity

THEN, I would argue that it is unreasonable to expect this person to be made to sign a claimant commitment (at all) or that would be anything but ‘no work requirement’ specified in it.

Please I would really like people to comment. I am finding the situation is getting from bad to worse, with cancer patients in my case, in treatment being asked for fortnightly meeting with work-coaches to access the New Style ESA (wait for it ... not even a means-tested benefit!). These people are normally working full time and will (wish to) return to their job as soon as they possibly can and YET, they are still harassed during the time that they are forced to claim benefit because of critical ill-health!

Thanks for the reply Michele, and the legal refs. I’ll have to think about this more next week, but one initial comment comes to mind:
A possible issue with the reg 35 argument is that, as I understand it, r35 is only considered as a fallback for those who don’t meet one of the Schedule 3 descriptors. For all I know, my client’s degenerative neurological condition may have got them into the support group under Sch 3, without r35 ever being considered. So it may be that the r35 argument couldn’t be relied upon, because my client was too disabled for it to come into play.

I should have said above: in my case, my client did get a reply on the UC journal saying that work search requirements are “switched off”, nevertheless the two quoted statements remain in the proposed commitment. Which leaves me and my client confused about what amounts to a work search requirement.

I note that it appears that anyone who begins a UC claim is asked as part of their final declaration on the claim to agree to a “high level” commitment to do “everything you reasonably can to increase your earnings. Your work coach will help you agree your commitments”. See DWP video here at the 3:30 mark:

https://www.youtube.com/watch?v=4WgJU8Y_bQg

This is virtually the same phrasing as appears in my client’s commitment. Does this mean that it’s essentially meaningless, because what is “reasonable” in each case could vary from “absolutely nothing is reasonable”, to a 35 hour jobsearch? And the presumption that a dedicated work coach will be involved in every case may not necessarily pan out?

edit to add: the voiceover suggests that the commitment will vary depending on circs. At this point in the claim there should have been a To Do question about health, so perhaps I’m wrong and not all claimants have to agree the same “high level” commitment.

Michele, having looked at it I see what you mean about r89 of the UC regs. It’s very odd, the reg lists all the groups who have no work requirements, but fails to mention those in the support group. It just an error?

For what it’s worth, there is a passing reference in reg 111 to there being a nil sanction if “the claimant falls within section 19 of the Act by virtue of having limited capability for work and work-related activity”. This shows that it is accepted within the UC regs that there is a link between Support Group and the “no-work requirements” protection of s19.

My take on it:

Reg 89 doesn’t need to repeat what is already in s19(2)(a), (b) and (c) (LCWRA, carer, child under 1).  But s19(2)(d) gives the secretary of state the power to prescribe further categories who, in addition to the three groups mentioned in the Act, are also fully exempt from work requirements:

”(d) the claimant is of a prescribed description”

Reg 89(1) is where those prescribed descriptions are found.  The reference to carers in Reg 89 is there because the exemption in s19(2)(b) contains terms whose definition is left to regulations - see s40 of the Act and UC Regs 2 and 30, which cover most carers, but Reg 89 extends the exemption to others who would not satisfy Reg 30.

HB Anorak - 10 July 2017 03:53 PM

My take on it:

Reg 89 doesn’t need to repeat what is already in s19(2)(a), (b) and (c) (LCWRA, carer, child under 1).  But s19(2)(d) gives the secretary of state the power to prescribe further categories who, in addition to the three groups mentioned in the Act, are also fully exempt from work requirements:

”(d) the claimant is of a prescribed description”

Reg 89(1) is where those prescribed descriptions are found.  The reference to carers in Reg 89 is there because the exemption in s19(2)(b) contains terms whose definition is left to regulations - see s39 of the Act and UC Regs 2 and 30, which cover most carers, but Reg 89 extends the exemption to others who would not satisfy Reg 30.

I agree with this analysis.

I’d also add that the interpretation section 40 of the WRA 2012 has the following:

“limited capability for work” and “limited capability for work-related activity” are to be construed in accordance with section 37(1) and (2); and section 37 makes provision for regulations to decide how to assess LCW/LCWRA.

To me, the problems noted above appear to be more about the poor administration of UC and their apparent inability to deal with transfer claimants properly when someone has already been through a WCA and been placed in WRAG or support group.

That does make sense, thank you.

And yes, I’m sure it’s more of an admin failing, than it is of DWP analysing the law and coming to the wrong conclusions on which groups of previous ESA claimants can be immediately paid the LCWRA element, etc.

Given that we’ve seen claimants being asked to return an ESA50 and UC50 simultaneously, and to provide JCP with two sets of sick notes - one for the UC system and one for the ESA system - then I think it’s safe to say the system isn’t joining up very well.

I agree with Paul and HB anorak. There are problems in that everyone (even if subject to no work related requirements) has to have a claimant commitment unless they lack capacity or there are ‘exceptional circumstances’ (reg 16). My take on this is that in practice both people lacking capacity and exceptional circs are more common that the government envisaged (people in hospices etc), and that if possible we need to push for this - either by pressing government to amend the regs OR pushing for that reg to be used more often by challenging practice & decision making.

The use of work coaches though isn’t covered by the law - practice is the problem here because agreeing a claimant commitment requires seeing a work coach, and reg 16 isn’t being used much (if at all?)

Going back to getting the LCWRA component included - for people transferring from ‘old style’ ESA the UC (TP) Regs are pretty clear. Reg 19. Where it’s already been determined that they are in the support group they should be treated as having limited capability for work-related activity & the component can be included immediately. Dunno if it is worth throwing that at them?

Another problem may be that they say you can’t request an MR because there hasn’t yet been a decision about LCW…but I’d probably put an MR in (saying well DWP are not paying the component so it looks like they’ve made a decision that the TP regs don’t apply, and this is wrong) AND complain (because the alternative is they are taking too long to decide that the TP regs apply, and putting the client to unnecessary stress & administrative hassle with UC50 etc in the meantime).

Full service area. Client in Support Group for ESA (under Regulation 35 (mental health)) since January 2017. Sectioned in February, left hospital end of March. Child taken away by father in February, but came back to her in May 2017, during which time UC has come to the area. Client tries to claim Child Tax Credit and has to make UC claim. Has first interview in local Jobcentre, thinks that as she is in Support Group is just popping in to provide ID and agree to inform ofa change of circumstances etc.

Of course not!

Client (despite saying “I’m in the Support Group!”) has a full hour and a quarter interview, during which time she is told she must be planning her return to work etc. and is told she must come in every two weeks. She left thinking she is being treated as a Jobseeker, had a full-blown panic attack and thought seriously about slashing her wrists.

I send a cross e-mail to the Jobcentre, saying that although client said her work coach was sympathetic, it was clear that training left something to be desired, as Limited Capability for Work-related Activity (LCWRA) was transferable from ESA.

Got a cross phone call back saying there weren’t any training issues, and the issue was this:

Until client came in and presented her ID (11 days after making her claim for UC), she “did not exist”. Then, from the date that she presents her ID, it takes 3-4 weeks for evidence of her being in the Support Group to come to the local Jobcentre. (Suggestions from me that as they are in the same government department couldn’t they just have an instant computer link-up are met with “that’s the system”-type replies.) It was made clear that until evidence comes through of her LCWRA, she MUST be treated as a Jobseeker - they have no choice. The major concession I wrung out of them was they agreed to do client’s first fortnightly interview over the phone.

So, what to do? Any client such as this should be advised of what they face - to take a mental health professional with them if possible; take letter showing they are in the Support Group; take medical letters/discharge from hospital letters. You will no doubt be met with the same “it’s the system” response. So tell Citizens Advice or MPs as well.

Following MR/complaint on the case that started this thread, reply back saying UC50/fit notes no longer needed. However, it has to go to a decision-maker to decide the LCWRA status, and until that decision comes back then “claimants are automatically put in the intensive work search regime, although we appreciate this may not be appropriate for [client]”.

I get the feeling that claimants already receiving c-ESA do not necessarily or automatically get their cases referred to a UC decision-maker in order for their LCW or LCWRA status to be confirmed. You have to know to ask for it to happen.