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WCA delay - now working over threshold - treated as fit and WCA withdrawn
Claimant applied for UC and submitted UC50 in April 2021, heard nothing. Recently started work at just over 16hrs pw NMW so DWP have ‘withdrawn’ WCA.
UC Reg 41 uses the phrase “may not carry out an assessment” but does this actually mean that with the WCA process having begun they may not continue the assessment?
If the WCA had been completed in a timely manner and claimant had been found to have LCWRA then, OK, when she started work they could review her LCWRA. Or if the WCA process had only just begun maybe they could have withdrawn it (?), but with it being 9 months plus and no outcome from the WCA she has potentially missed out on LCWRA from the end of the relevant period.
We have advised an MR but not convinced it will succeed.
I’m wondering if all this hangs on what is actually meant by “assessment” or “carry out”?
Reg 41
(2) If the claimant has monthly earnings that are equal to or exceed the relevant threshold, the Secretary of State may not carry out an assessment under this Part unless—
(a)the claimant is entitled to attendance allowance, disability living allowance child disability paymen or personal independence payment; or
(b)the assessment is for the purposes of reviewing a previous determination that a claimant has limited capability for work or for work and work-related activity that was made on the basis of an assessment under this Part or under Part 4 or 5 of the ESA Regulations,
and, in a case where no assessment may be carried out by virtue of this paragraph, the claimant is to be treated as not having limited capability for work unless they are treated as having limited capability for work or for work and work-related activity by virtue of regulation 39(6) or 40(5).
Anyone any thoughts?
Claimants have been penalised by this issue since ESA began.
But - WCA will decide capability for work at the time of the decision.
Does the client have a realistic prospect of getting enough points etc now?
Is the client in receipt of a disability benefit?
Hi Helen
Re disability benefit - PIP not in payment but we’re waiting for clarification on whether it’s being appealed.
Claimant’s health has not improved - apparently took the job out of financial desperation.