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ESA appeal allowed (original decision 31/3/17) while client awaiting UC LCW decision (assessment done late November)
Phew - where do I begin!
We were one of the first jobcentres to go full service UC.
My client failed an ESA WCA assessment in March 2017. Today she received her ESA (paper hearing) appeal decision (made on 3/1/2018) and has been placed in WRAG backdated to 31/3/17 with a recommended reassessment period of 24 Months from the hearing date (I know this isnt binding but is usually complied with around here) .
In the meantime she has been claiming UC.
This tribunal decision would normally go forward onto her UC and stop any further WCA process, but she has also already had a UC F2F assessment in November and is awaiting the decision.
So…..
1) Will the appeal decision still stop the UC LCW process and go forward onto her UC claim, as would be the case if she was awaiting assessment. OR will the ESA decision only apply for a closed period because she has already had the assessment?
2) What if the UC assessment outcome arrives before this has been sorted and is a fail? Can we still argue for the ESA decision to override this? Obviously if the UC decision is LCWRA then we hope that that will override the the tribunal decision (having my cake and eating it?)
3) Also the original date of decision to which her appeal decision applies is March 31st - so 3 days before the new WRAG non payment regs came in. So, should she get LCW component paid ongoing even if the new UC WCA decision is still the same.
Any ideas ?
Hiya - will give my view but welcome others!
As I see it the result of the ESA appeal means that the WRAG component will be included in her ESA and then the LCW element should be included in her UC from the start of claim under reg 19 of the UC (TP) Regs 2014. Because the LCW period started before 3/4/17 there should be no problem with the element being paid
The LCW element should stay in her UC until there is a supersession - which obviously could take place following her recent F2F assessment. So if she does fail that then it could be grounds to supercede the UC decision and take away the LCW element tho obviously that would be subject to appeal. However, if they were to decide that your client is LCWRA then that would be the supersession decision so that should be fine. As I see it this is just a repeat assessment and could have any outcome - fit for work, LCW or LCWRA. I think because the F2F assessment has already taken place it is too late stop the WCA on the basis that the tribunal recommended 2 years
I did wonder exactly that - but isnt the face to face assessment only part of the process not the actual decision? When a decision is made it is the date the DM decides the case not when the assessment was done. We are always told that the assessment is only part of the evidence considered by a DM in order to come to a decision (though you wouldnt think so in most cases). In this case the decision has not yet been made.
Hi guys
I’ve got one at minute very similar to this that i’m unsure about.
Client was on ESA in WRAG had a review and failed the WCA effective 27/7/17, no other income except ctc & chb so no option but to claim UC.
She did man recon and decision remained same so she appealed. All the while on UC sending in sick notes. Shes recently done her UC 50 and is waiting the ftof assessment.
I think its feasible that she will have trib before the new UC LCW outcome is decided so i’m not sure whether if tribunal give her support group (if they give her WRAG then I know the WRAC wont be paid with the UC) say will she keep this in transitioning to UC from ESA on the 30/7/17 to present or will it just be paid with the 3 days ESA from 27/7-30/7/17 pending the new UC LCW outcome.
If it wont follow through to the UC claim its hardly worth her going to the trib for 3 days possible support component. Not sure if there is any trans protection but I will read your link on it Daphne, Thanks
... (if they give her WRAG then I know the WRAC wont be paid with the UC) ..
If she establishes a continuous period of LCW which goes back before 3/4/17, then the work component should be paid in ESA and/or UC, shouldn’t it? This should be the case even if that has to include a gap between awards with some “credits-only” days, as far as I can see.
Guidance linked here:
https://www.rightsnet.org.uk/welfare-rights/news/item/removal-of-the-esa-work-related-activity-component-and-universal-credi
(or have I got this all wrong?)
I did wonder exactly that - but isnt the face to face assessment only part of the process not the actual decision? When a decision is made it is the date the DM decides the case not when the assessment was done. We are always told that the assessment is only part of the evidence considered by a DM in order to come to a decision (though you wouldnt think so in most cases). In this case the decision has not yet been made.
Yes I agree - they must continue to include the LCW element in her award until there is a superseding decision which there isn’t yet - it is only when a DM makes a decision that they can change it and it can only be from that date. You could try pre-empting them by making sure they have the tribunal decision to see if that sways them.
And on yours Phil - it’s the same - if she wins the ESA appeal then the UC claim should have the appropriate component (and it could be LCW so long as the original period of limited capability for work started before 3/4/17 - not sure from your post whether it did Phil?) in it from the start of claim under reg 8 as above. Really UC shouldn’t have done another WCA but given that they have, if they subsequently make a superseding decision, then that should only take effect from the date of that decision and will be appealable
[ Edited: 9 Jan 2018 at 02:05 pm by Daphne ]Yes good point, thank you all
Phil - just edited post above - but you may have missed in posting before i finished edit. If period of LCW started before 3/4/17 - which it may have done - then LCW element could be included in UC - which is also what Jon points out above :)
Given that my clients F2F assessment was at the end of November I do actually wonder if UC have in fact been waiting for the tribunal decision before doing their decision. Watch this space…
Have a client who was in SG, failed WCA, claimed UC on the advice of the JC whilst MR going. We submitted an appeal yesterday but meanwhile he has been sent an UC50 and presumably a medical will follow soon. So on the basis that appeals in this area are taking approximately a year to be held where does that leave us?
If a new LCW decision is negative will we need to appeal this separately as a new decision? and then what happens if first decision changed if we have a second appeal ongoing at the same time.
If new decision positive will the Tribunal simply consider entitlement between the two periods?
My head hurts..
Hi Maggie,
We have come across a similar issue and we are wondering too. Please let me know if you find an answer to this.
Have you tried contacting UC to say completely inappropriate to send UC50 now as still pending appeal on previous WCA. If you do I’d be interested to hear how you get on. I"ll raise the issue via stakeholders too. It’s ironic really - if someone claims UC and falls ill, it seems it’s nigh on impossible to get a UC50 sent out - and then if they’re pending appeal they seem to send them out willy-nilly!
I have another similar case but the client has already received a negative decision on his UC WCA. We have a tribunal hearing next Tuesday for the ESA appeal and I am fairly confident of a positive decision. I am assuming that this means that even if we get a win next week, he will only be LCW/LCWRA from the date of the original ESA claim to the date of the UC decision?
So incredibly frustrating.
Yes it is a closed period. If you put in an MR/appeal to the UC WCA decision and include a copy of the tribunal decision - assuming it is favourable - it might be enough for them to change the decision without going to appeal.
Yes it is a closed period. If you put in an MR/appeal to the UC WCA decision and include a copy of the tribunal decision - assuming it is favourable - it might be enough for them to change the decision without going to appeal.
That’s what I’m hoping. I will update with progress. If it isn’t enough for them to change their mind at MR stage then it may be that we need to be advising clts on whether they should be completing the UC50 if a tribunal date is imminent.
The trouble is if they don’t complete is, and the DWP don’t think that’s reasonable, they can be treated as fit for work for failing to return it :(