Appealed ESA put on UC now sent appointment for another WCA but under UC

I’ve a client who is awaiting an appeal hearing for ESA, she was also getting the SDP but lost it when taken off ESA. This decision is under appeal. However, because she went onto UC, she now has an appointment for a further WCA.

In my opinion if this WCA goes ahead a new UC decision will be made, which restricts my client’s ESS from the date of the Tribunal to the date of the new UC decision. Is there any way I can assist my client to avoid this situation.

My idea is to write to the DWP stating the ESA appeal and it is unlawful to send client for another WCA because it’s “Ultra Vires”.

Thanks

DWP own guidance states that if claimant has already been found fit for work they should not carry out another WCA unless they are satisfied that a change of circumstances has taken place

“G1040 Where it has been determined that the claimant does not have LCW following application of the WCA under UC or ESA legislation, a WCA may not be carried out unless there is evidence to suggest that
1. the determination was based on ignorance of, or mistake as to, some material fact or
2. there has been a relevant change of circumstances in the claimant’s physical or mental condition, for example where there is a new or worse condition.”

Thank you, this is very helpful, Great Stuff! , Where can I find this guidance, please?

Does this apply if the Claimant claimed IBUC on advice of the DWP. Under ESA regulations she would have had to claim JSA.?

Regards

Terry

Your client has a choice - if they draw attention to the appeal, then the DWP will probably cancel the WCA and whatever the Tribunal decides will carry over onto UC.

Or they can let the WCA go ahead. This would give them a “second bite at the cherry” as the new WCA would not be bound by the old one and may give better result.

In the event that the new WCA also found your client fit for work but the Tribunal allowed the appeal, it is normally straightforward enough to have the 2nd decision changed to reflect the Tribunal’s conclusions.

The guidance quoted above can be found here https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/754948/admg1.pdf
but it is in relation to preventing repeat assessments when someone has already failed the WCA; it is not helpful for the argument you are trying to make. It comes from UC Reg 41 and the corresponding ESA Regs that stops repeat claims without a new condition/deterioration.

Why do you think that arranging a new WCA would be ultra vires? It is an inevitable part of claiming UC and stating that you have LCW, isn’t it?

I don’t have experience of getting DWP to adopt the practical solution that Elliot suggests but I imagine that this is based on common sense and administrative convenience rather than a legal process. Is that right Elliot or am I missing something?

Hi Kirklees,

By forcing the Claimant to undergo another WCA, regardless of the outcome, she will go forward on UC, whether it is in the “Fit for Work Category or Fit for work related activity or in the support group.  . As she receives PIP standard rate for daily living activities. She has the SDP included in her IBESA applicable amount. It is suspended at the moment pending appeal.  However, UC does not have the SDP and she will lose £60= per week. Hence, trying to keep her on ESA for transitional protection. Unless of course it would remain under UC, which I doubt very much.

To simplfy my thinking:

!) 01.08.18 ESA withdrawn after WCA: ESA Appeal: Appeal won ESA reinstated and backdated to 1st August 2018                                                                    
Transitional protects IBESA & SDP

2) )1.08.18 ESA withdrawn after WCA ESA Appeal 19.11.18 Second WCA:  Client goes on UC form 01.12.18

Appeal is successful. However, in this scenario ESA and SDP only paid from 01.08.18 to 01.12.18. However, I am even starting to think that claiming UC after failing WCA may negate any payment of IBESA to the date of this claim.

It is as clear as mud. is there any argument that the DWP advised the Claimant erroneously and as this is an official error? Would she have been able to claim ESA.  Would I be able to apply for an any time revision.

Thanks for your advice and guidance. It is much appreciated.

Sorry to do your heads in, as we say in Scouse Land

Cheers

Terry

I’m sorry to be so blunt The CASA, but I think you are getting very muddled up here.

Your client gets ESA inclusive of SDP paid up until date X at which point it is terminated due to being found fit for work. Your client claims UC on date Y.

If your client wins their appeal, the result will be :
  (A) ESA including the SDP will be payable for the period between dates X and Y
  (B) UC will continue to be paid from date Y however the component from ESA will carry over under the Transitional Provisions and will be payable from the start of the claim. No SDP will be paid, but…
  (C) your client will (on the face of things) appear to qualify for the SDP compensation provided for under the draft Managed Migration Regs. 

ESA will not go back into payment beyond date Y no matter what happens. An award of UC is an irreversible event - once you are in the lobster pot, you are stuck there.

Whether a new WCA is or isn’t conducted on the UC claim doesn’t matter. It’s the claim for UC that’s important.

As above, if UC carries out its own WCA and makes its own decision, then it will overtake the Tribunal’s decision from the point at which it takes effect -  however I have never found it too difficult to get these decisions changed if they end up being less favourable than the Tribunal’s decision (there is a specific ground of any time revision which applies under Reg 11(2) of the D&A Regulations 2013 although I have never had to rely on that specifically)

Cheers Elliot,

You are not being blunt you are being very helpful, so carry on being as blunt as you want to be. Oh by the way I just could not get my head around it. So you were right again, I was muddled but I’m not now.  So it’s a great big thank you.

Cheers

Terry

Elliot Kent - 14 November 2018 08:21 AM

I’m sorry to be so blunt The CASA, but I think you are getting very muddled up here.

Your client gets ESA inclusive of SDP paid up until date X at which point it is terminated due to being found fit for work. Your client claims UC on date Y.

If your client wins their appeal, the result will be :
  (A) ESA including the SDP will be payable for the period between dates X and Y
  (B) UC will continue to be paid from date Y however the component from ESA will carry over under the Transitional Provisions and will be payable from the start of the claim. No SDP will be paid, but…
  (C) your client will (on the face of things) appear to qualify for the SDP compensation provided for under the draft Managed Migration Regs. 

ESA will not go back into payment beyond date Y no matter what happens. An award of UC is an irreversible event - once you are in the lobster pot, you are stuck there.

Whether a new WCA is or isn’t conducted on the UC claim doesn’t matter. It’s the claim for UC that’s important.

As above, if UC carries out its own WCA and makes its own decision, then it will overtake the Tribunal’s decision from the point at which it takes effect -  however I have never found it too difficult to get these decisions changed if they end up being less favourable than the Tribunal’s decision (there is a specific ground of any time revision which applies under Reg 11(2) of the D&A Regulations 2013 although I have never had to rely on that specifically)