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Assessment rate ESA for 5 years then claims UC

 

Billy Durrant
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Client appears to have been on assessment rate ESA for nearly 5 years until Feb 18 then her ESA claim was terminated for failing to attend her WCA. She held out waiting for MR until June then claimed UC. She had WCA for UC within 5 weeks and HCP has strongly indicated that LCWRA will be awarded.

ESA MR now received and we’re appealing the non-attendance at WCA and confident of winning this appeal.

But what happens if she does win it?

My only thought is that DWP might be persuaded to apply the outcome of the UC WCA from June backwards into the ESA claim, resulting in a 5 year backdate of the SG component and EDP but I can’t see that there is actually a legal mechanism to do this.

What should happen if we win the ESA good cause appeal?

     
stevenmcavoy
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are you arguing good cause for the fta for health reasons?  if so then what evidence is there available?  is there anything other than the uc wca?

way i see this is you need to convince an esa decision maker to accept good cause for the fta but also get them to accept that same evidence is sufficient to establish lcfw/lcfwra at the same time (i cant see a reason why that cant happen but could be wrong)

if the only evidence is the uc wca then i think you might struggle to get a decision maker to apply that to the esa claim even where its a pretty static condition.

otherwise argue for compensation?

     
Andyp5 Citizens Advice Bridport & District
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This example from roughly 6 years ago working for another advice agency may be of help?

Client died during the assessment phase before an face to face WCA medical assessment took place, at the ESA 50 stage we had provided medical evidence that arguably suggested client met the criteria for the Support Group.

Long story but made the argument that there had been an assessment of sorts (i.e. an HCP had done a ESA 85A arguably a paper based assessment, albeit recommending a face to face assessment). The DWP refused to action the GL24 initially i.e. allow the appeal application, then asked for the appeal to be struck out.

The Judge in question directed that both we and the DWP ‘Make a further submission as to the construction of the word assessment in regulation 19 of the ESA Regs 2008’. 

See below for the response i made

‘Arguably ‘assessment’(s) meaning in the context of regulation 19, points to the process of weighing up the evidence which may or may not include/require an e.g. ESA 50, miscellaneous medical evidence (regulation 21 (1) (b) (c)) or an medical examination (regulation 23) in order to make a determination whether the claimant has ‘Limited Capability for Work’ (LCW) by a Decision Maker’. 

The DWP’s response to the Judge’s direction was to literally refuse to provide a submission in writing and provide a comment that could best be described as flabberghasting.

The Judge and Medical Panel member found that the ESA 85A paper-based opinion stage did constitute an assessment and allowed the posthumous appeal.

PS the fact there was a face to face WCA, suggests there is a ESA85A inn existence.

 

 

      [ Edited: 26 Jul 2018 at 10:42 am by Andyp5 Citizens Advice Bridport & District ]
Billy Durrant
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stevenmcavoy - 25 July 2018 04:13 PM

way i see this is you need to convince an esa decision maker to accept good cause for the fta but also get them to accept that same evidence is sufficient to establish lcfw/lcfwra at the same time (i cant see a reason why that cant happen but could be wrong)

Good point Steven, thank you.

Yes, medical grounds for FTA the WCA - kidney infection with multiple episodes of sepsis over the last year and says she was only discharged from 4 days in hospital the day before the WCA, was still feeling out of it and had forgotten all about the assessment. Also has HIV, mental health issues, fatigue and mobility problems. All sounds perfectly reasonable (if the facts turn out to concur with her explanation of course…)

      [ Edited: 26 Jul 2018 at 10:48 am by Billy Durrant ]
Billy Durrant
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Cross-posted Andy but thanks for that too, interesting. I suspect there may be a ESA113 in this case so I will look into that.

     
Andyp5 Citizens Advice Bridport & District
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Billy Durrant - 26 July 2018 10:46 AM

Cross-posted Andy but thanks for that too, interesting. I suspect there may be a ESA113 in this case so I will look into that.

ESA 113 could be really helpful!

Just discovered last week that SAR’s can now be done on line (hopeless at links but try request personal information from DWP and then scroll down and it’ll all become apparent).

     
past caring
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SAR with a request for full details of the examination history will be essential if you end up wanting to go down the compo route. I had a similar case a few years back where it appeared a compo claim would succeed, only for it to later transpire that the client had a long history of re-arranged medicals, DNAs and good cause being accepted…....

     
Billy Durrant
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Thanks both. 5 prior cancellations of WCA, all by Atos/Maximus according to client

EDIT
The link for online SARs to DWP is here if anyone needs it https://secure.dwp.gov.uk/personal-information-request/name

      [ Edited: 27 Jul 2018 at 10:58 am by Billy Durrant ]
Martin Williams
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As I see it the issue here is that if you win the FTA appeal and then subsequently client assessed for LCW/LCWRA on UC they should go back and supersede the ESA award. I think the legal basis for that works as follows:

1. Regulation 6(2)(r) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (SI No. 991) provides a decision can be superseded on an application in the following circumstances:

“(2) A decision under section 10 may be made on the Secretary of State’s […] own initiative or on an application made for the purpose on the basis that the decision to be superseded-

[…]

(r) is an employment and support allowance decision where, since the decision was made, the Secretary of State has-

(i) received medical evidence from a health care professional approved by the Secretary of State; or”

 

2. In this case the conditions allowing the award of ESA to be superseded under that provision are satisfied:

a. It is an ESA decision; and

b. Once the claimant undergoes assessment of LCW/LCWRA for UC then you can say that since the decision to award ESA was made the Secretary of State has received medical evidence from a health care professional (that is the report provided to the Secretary of State by Maximus in respect of assessing claimant for entitlement to the LCWRA element of UC).

3. There is no requirement in regulation 6(2)(r) that the primary purpose of the medical evidence has to be for the ESA award- in this case it was for the UC award.

4. Given that the LCW and LCWRA tests for ESA and UC are effectively the same in terms of the level of functional impairment a claimant is required to show, then plainly the report provided to the Secretary of State for the purposes of sorting out the UC award will enable a decision maker to make a decision for the purposes of the ESA award.

5. Once a decision under regulation 6(2)(r) is made then the effective date for that supersession is set by regulation 7(38) as being the start of the 14th week of entitlement to the ESA.

———————
Where an ESA award ends prior to assessment phase having ended (ie without WCA being applied) then it will only be in a case where there is no subsequent receipt of a report by the SSWP that nothing can be done as far as I can see.

 

      [ Edited: 27 Jul 2018 at 11:08 am by Martin Williams ]
Billy Durrant
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Thank you Martin, food for thought for sure.