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Significant Deterioration or new condition

SC
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Citizens Advice Rossendale and Hyndburn

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I have a client who has LCW but not LCWRA although the DWP have acknowledged his extremely poor mental health in much more detail than I have ever seen in an MR. The work related things they have said he can do are very minimal i.e. answering a phone, which he cannot always do. I have been told on the helpline that he should get a new fit note and/or GP letter stating significant Deterioration or new condition. I have been told this for other clients also. The new fit note mentions upping his meds but doesn’t use the words above. Cl didn’t know he was putting in an mr so a written one was not submitted. By the time he came to me the decision had already been made and upheld.

However when the cl has tried to take the fit note to the JCP with a covering letter from me they have told him the woman on the helpline was wrong and now there is nothing he can do apart from go to appeal. Cl is quite distressed at this. Can someone point me in the direction of where the rules are re significant Deterioration or new condition so this can be pointed out to the JCP. Also if such a fit note was accepted would a new UC50 have to be completed to get to the new WCA. Thanks, Claire

Elliot Kent
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Your client has been assessed as LCW. If he considers that he should be found to have LCWRA, then either he can appeal or ask for the decision to be superseded on a change of circumstances (which will typically entail a new UC50 etc).

There is no rule about “significant deterioration” applicable in this situation. It is sometimes necessary to show that you have a significant deterioration if you have been found fit for work and you are trying to persuade the DWP to re-assess you but that is not the situation you are dealing with.

Va1der
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The fact that an MR has already been decided works in the claimants favour, in terms of speed if he wants to pursue appeal.
If DWP has acknowledged impacts of his conditions in the MR, but not awarded points accordingly, that can be used as supporting evidence in the appeal (and in line with recent developments (DM empowerment etc) I wouldn’t be surprised if DWP revises the decision before appeal, especially if you can attach strong evidence from a medical professional).

Whether a supersession is appropriate depends on when your client got worse.

What does the claimant commitment look like? If the WRAs are limited to something the client can live with in the short term you could advise to wait until appeal is resolved. If not, apply for supersession. In any event the appeal can go foward. 

Dan_Manville
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If his mental health is as bad as you say I’d be looking to appeal that MR.

Appeals like this run on the question of whether the Decision Maker can prove what WRA is being provided locally and in every appeal I’ve seen they provide a generic, national list which doesn’t meet the evidential requirements laid down in IM. Thus unless they have some local knowledge, which they invariably don’t -one of our local Judges walked into JCCP and asked the front desk what they were providing, they just shrugged their shoulders- then they can apply a broad brush approach, consider the risk from a 35 hour a week Mandatory Work Placement moving paving slabs in a cage full of tigers and find that reg 35 is engaged.

Maybe not the tigers though; I got carried away.

Lots of discussion here: https://www.rightsnet.org.uk/forums/viewthread/12576/#58710

SC
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Citizens Advice Rossendale and Hyndburn

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Thanks folks.

Elliot Kent:
I think the helpline adviser has got mixed up with someone who didn’t get lcw, and she has convinced me she was right…

Dan Manville:
I tried to get them to let me put in a written statement to back up the original verbal MR. What do you mean when you say appeal the MR? Sorry I’m a learner. I have the normal appeal in but the client is struggling financially as well as mentally. They aren’t asking him to do very much as he’s so ill which is part of my argument for putting him in the support group. What they are asking him to do is so little so as to be almost meaningless.

The cl has agoraphobia (not a named diagnosis) but hides away at home for the majority of the time. The MR says that the most demanding type of WRA could be voluntarily attending group sessions. The least demanding is discussions with an adviser to discuss health and welfare concerns (doesn’t sound like WRA to me). They acknowledge after this that he has difficulty getting out of the house alone and has to restrict the times he leaves home.

I might put in a complaint re the MR, that because they didn’t tell him to get advice and accepted the MR he wasn’t treated fairly and didn’t have a fair crack of the whip etc. as well as proceeding to Tribunal.

Cl was given LCW under the substantial risk rules.

Elliot Kent
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SC - 22 November 2019 05:39 PM

What do you mean when you say appeal the MR?

He just means to appeal.

SC - 22 November 2019 05:39 PM

They aren’t asking him to do very much as he’s so ill which is part of my argument for putting him in the support group. What they are asking him to do is so little so as to be almost meaningless.

This is why reg 35/para 4, sch 9 arguments can sometimes be tricky these days. At one time, WRA almost invariably meant going into the Work Programme which was potentially extremely onerous and could mean two years of daily attendance at a placement. That has been scrapped so now WRA can often mean just the “Job Centre Offer” which can amount to only the occasional phone call to check up.

By the time the appeal comes round, your client will have been on the “Job Centre Offer” for a year or so and if he has only been asked to take 3-4 phonecalls in that time, that can easily become the yardstick against which WRA is judged. It’s all very well saying that WRA could be more than that but my experience is that Tribunals aren’t particularly keen to decide cases on a counter-factual when they can just ask the claimant what they’ve been required to do in the year or so between decision and hearing.

See also KC and MC v SSWP (ESA) [2017] UKUT 94 (AAC)

SC - 22 November 2019 05:39 PM

I might put in a complaint re the MR, that because they didn’t tell him to get advice and accepted the MR he wasn’t treated fairly and didn’t have a fair crack of the whip etc. as well as proceeding to Tribunal.

I really don’t think this is cause for complaint. DWP should not be gatekeeping MR requests even with good intentions which is functionally what is being suggested here. Your client was entitled to request MR whether or not he had an adviser. It won’t matter in any case, because whatever arguments you wish to make at this stage will be looked at by the DWP when the appeal is received and they will be able to revise their decision if they wish.