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ESA for student - automatic LCW?

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WROTricia
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I have an appeal coming up for a full time student in their 30s who is on DLA MRC/LRM. They have been found FFW. Arguing with DWP that they should have automatic LCW and thus only assessed for Support Group but they are disagreeing, It’s not clear why - apparently the legislation is “contradictory” so they cannot say exactly the reason for going forward with the appeal, which is just an ordinary FFW appeal, the disabled student exception doesn’t appear to have been a consideration for the original or MR decision makers. I’m hoping someone can shed light on the possible reason(s) they are adamant in going ahead? Have I not understood the disabled student exemption properly? Thanks in advance.

     
Jane O-P
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is it for income related ESA?

     
WROTricia
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yes, sorry, should have made that clear

     
Jane O-P
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I don’t know then - should be a nice easy appeal for you!

If they had a genuine argument (eg they didn’t accept she was in relevant education, or didn’t believe she was on DLA) then they would say so.

If you’ve not already done so you could try sending them their own guidance https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721790/dmgch42.pdf para 42125.

     
WROTricia
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Thanks very much, I might just try that.

     
Chrissum
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Seems to me it is a combination of reg 33(2) and 18 of the ESA Regs. So provided they are not a qualifying young person (unlikely due to their age) and receiving education they are treated as having limited capability for work if they are in receipt of DLA or PIP. There doesn’t appear to be anything “contradictory” about it and the only possible argument they could have is whether they are in “education”.

     
NAI
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Had a few of these cases in recent years. Last time,  a DM said to me that they’d only just found out about Regulation 33(2). After all, the regulation has only existed since 2008!

     
Chrissum
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We’ve got one at the moment where the DWP submission doesn’t mention reg 33 at all, despite the MR and appeal drawing their attention to it as well as their own guidance! We’ve asked for a direction that they at least consider it in a supplementary submission and if not a PO explains why they feel it does not apply. What a waste of everyone’s time. Maybe this is why the UC/disabled students route is so complicated?

     
WROTricia
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Thank you all, it is reassuring (probably not the right word) to know this is happening elsewhere. A DM told me yesterday they have been doing this job 20 years and they hadn’t heard of it. And??? It still exists even if you haven’t heard of it.

     
Chrissum
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Daphne is this one for stakeholders (perhaps it could be tagged on to the problems with disabled students accessing UC)? Seems to be a number of cases here where experienced DMs have no familiarity with their own guidance or the law behind them. In our case the DWP acknowledges reg 18 applies and recognises PIP is in payment but still insists that the student should be deemed fit for work following her assessment not even considering or mentioning reg 33 at all. Is there something else within the regs that we are missing whereby an assessment overrides the law?
Many thanks.

     
Daphne
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Have sent in…

     
Daphne
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This is the reply I have had -

Thank you for raising this issue around the administration of Disabled Student claims.

We have considered your suggestions and looked into the issue in depth. We are satisfied that DWP guidance relating to Disabled Students is correct and references the appropriate legislation. Our guidance for Decision Maker’s (DM’s) when considering Disabled Students can be found in the Decision Maker’s Guide (DMG) here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721790/dmgch42.pdf

All DWP Decision Makers are trained in the use of the DMG and use it as a reference when dealing with cases.

In order to establish if there is a wider training issue if we could be provided with details of the cases encountered to allow us to investigate further. We will however issue notices to all decision making teams to ensure the correct action is being taken when processing claims for Disabled Students.

I sent them this thread to look at which already referenced the guidance they have referred to in their reply! However, if you can send me details including Ninos of cases where it has been an issue then it may help them identify where the problem is and look at training. You can DM or email me - .(JavaScript must be enabled to view this email address)

     
Chrissum
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Thanks Daphne. Will do so.

     
stevenmcavoy
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they basically dont understand the reg.

2/3 appeals ive had on this very issue. turned up and won that easy.

     
Daphne
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stevenmcavoy - 25 September 2018 07:08 PM

they basically dont understand the reg.

2/3 appeals ive had on this very issue. turned up and won that easy.

If you send me the NI numbers then I can pass them on so that they accept that it is a problem

     
stevenmcavoy
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Daphne - 26 September 2018 01:35 PM
stevenmcavoy - 25 September 2018 07:08 PM

they basically dont understand the reg.

2/3 appeals ive had on this very issue. turned up and won that easy.

If you send me the NI numbers then I can pass them on so that they accept that it is a problem

ive already raised them at the Scottish stakeholder meetings daphne (well the general issue).