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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

11 month delay in work capability assessment decision ,  Moving from LCW to LCWRA

wbamic
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HI,

Working from home whilst looking after a 1 year old and 4 year old please so bare with me!


Client contacts a couple of months back.  Been on UC since 2017 and giving fit notes.  Subject to full conditionality.  Established he only claimed UC as needed help with rent.  Had previously been on ESA and in WRAG group up to day of claiming UC. 


I query with UC why LCW element has not been paid from start of his UC claim. 

Last week it came to light that he actually had a medical assessment back in June 2019.  Off the back of this he has been placed in LCWRA group going forward.  They have issued LCW arrears back to start of UC claim.  So from 2017 up to the last assessment period in 2020. 

My view is that he has lost out being paid only LCW for the last 11 months and unfortunately all he can do is make a complaint?

 

 

Elliot Kent
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Am I getting this right?:

-Claims UC in 2017; previously in WRAG and therefore entitled to LCW element but this isn’t paid.
-June 2019 - has a medical and advice is given that he qualifies for LCWRA.
-No decision is actually made following the medical - it just sits there without being actioned
-May 2020 - DWP:
(a) make a decision giving effect to the June 2019 medical effective from the date of decision and putting LCWRA element into payment going forward
(b) pay the LCW element for each AP prior to the new decision takes effect

The May 2020 decision relying on the June 2019 medical is then a supersession of the previous decision on the basis of a reassessment of the applicable grouping. DWP will be saying that this supersession relied on the ground set out at Reg 26(1) of the Decisions and Appeals Regulations. Such a supersession is effective from the date the decision was made (regardless of the date of the medical evidence).

There may be an argument around this. Essentially, you may be able to argue that the information provided in the UC50 /UC113/at the medical assessment ought to be dealt with as a notification of a change of circumstances and therefore the basis for the supersession ought to have been under reg 23 instead. This then opens the door to the effective date of the decision being pushed back to the point at which the notification was received (as under sch 1, part 3). This is likely to be an easier argument if there was specific identifiable change which led to going from LCW to LCWRA.

wbamic
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Mind in Croydon

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Hi Elliot ,  I appreciate the response. 

You have read that all correctly. 

The client has no memory of the June 2019 medical assessment , but the case manager insures me there was one.  Will start a bit of investigation now about what was actually reported at that time.  It is entirely possible that the assessment only.

I have the strange feeling that if i hadn’t raised the issue of the ESA award and getting the LCW element transferred into the UC award that the client could have actually been better off as he would have stood to get the LCWRA element paid back to the start of the UC award minus the waiting period. 

 

wbamic
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Mind in Croydon

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Elliot Kent - 13 May 2020 02:23 PM

Am I getting this right?:

-Claims UC in 2017; previously in WRAG and therefore entitled to LCW element but this isn’t paid.
-June 2019 - has a medical and advice is given that he qualifies for LCWRA.
-No decision is actually made following the medical - it just sits there without being actioned
-May 2020 - DWP:
(a) make a decision giving effect to the June 2019 medical effective from the date of decision and putting LCWRA element into payment going forward
(b) pay the LCW element for each AP prior to the new decision takes effect

The May 2020 decision relying on the June 2019 medical is then a supersession of the previous decision on the basis of a reassessment of the applicable grouping. DWP will be saying that this supersession relied on the ground set out at Reg 26(1) of the Decisions and Appeals Regulations. Such a supersession is effective from the date the decision was made (regardless of the date of the medical evidence).

There may be an argument around this. Essentially, you may be able to argue that the information provided in the UC50 /UC113/at the medical assessment ought to be dealt with as a notification of a change of circumstances and therefore the basis for the supersession ought to have been under reg 23 instead. This then opens the door to the effective date of the decision being pushed back to the point at which the notification was received (as under sch 1, part 3). This is likely to be an easier argument if there was specific identifiable change which led to going from LCW to LCWRA.


Just to update that at Mandatory reconsideration this argument has worked and they have agreed to award LCWRA from the date of the medical assessment (11 months before the decision date).  So was worth pursuing.

Elliot Kent
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Good stuff!