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ESA for student - automatic LCW?
I have checked my records and discovered that I have dealt with three of these kinds of cases since March 2015; I’m sure there have been others but I can’t find them.
In the first case, we requested an MR quoting the 33(2) regulations. This was ignored and we appealed. It was lapsed before the preparation of an appeal response.
In the other cases, we complained and this eventually did the trick.
It appears that there has long been a bit of a blind spot regarding this area of students in receipt of a qualifying benefit being automatically entitled to ESA.
Sorry I didn’t see all the replies, thank you for taking this forward. To update my case the appeal was lapsed the day before it was due to be heard. My concern now is that the client is no longer in education and the DWP only paid WRAG between the date of decision until the date they left education and insist that they are only entitled to the assessment rate until another WCA is arranged. I think that the WRAG should continue as if they had made the right decision in the first place a WCA could have been arranged before they left education and therefore there would be no gap. I’m really worried that the WRAC will be absolutely lost if a new WCA is not arranged and decided upon within 12 weeks and this will be the DWP fault not the client. Any advice gratefully received,
Sorry I didn’t see all the replies, thank you for taking this forward. To update my case the appeal was lapsed the day before it was due to be heard. My concern now is that the client is no longer in education and the DWP only paid WRAG between the date of decision until the date they left education and insist that they are only entitled to the assessment rate until another WCA is arranged. I think that the WRAG should continue as if they had made the right decision in the first place a WCA could have been arranged before they left education and therefore there would be no gap. I’m really worried that the WRAC will be absolutely lost if a new WCA is not arranged and decided upon within 12 weeks and this will be the DWP fault not the client. Any advice gratefully received,
this is absolute nonsense.
the person has LCFW by virtue of being a ft disabled student. the only thing that can change that is a new determination that they dont (with all the usual grounds). they cant just decide that no longer being a student removes their LCFW status.
I emailed one of our DEAs at local JCP about this issue and seeking guidance. Her response is copied below..I am speechless…
“Sorry for delay in reply, I have been seeking advice from our leadership team and our UC expert Tanya Reed-Balderson as our SIL.
Please see reply below, A lot of work is going on with this area of UC at present and is being discussed at regional level. So yes the work coaches and front of house team are looking out to support customers in this area. If a customer has PIP /DLA/AA , we can assume they’re going to be passed as Limited Capability for Work (LCW) and not treated as a student, therefore we continue with claim and refer to WCA immediately . A note of awareness is shared with the customer, that if found not entitled to Limited Capability for Work then they may have incurred an overpayment as entitlement ceases.
If you have any customer’s who are in doubt please ask them to input details to their journal, or come in and see us in the jobcentre if they would like to speak to someone in person.”
I emailed one of our DEAs at local JCP about this issue and seeking guidance. Her response is copied below..I am speechless…
“Sorry for delay in reply, I have been seeking advice from our leadership team and our UC expert Tanya Reed-Balderson as our SIL.
Please see reply below, A lot of work is going on with this area of UC at present and is being discussed at regional level. So yes the work coaches and front of house team are looking out to support customers in this area. If a customer has PIP /DLA/AA , we can assume they’re going to be passed as Limited Capability for Work (LCW) and not treated as a student, therefore we continue with claim and refer to WCA immediately . A note of awareness is shared with the customer, that if found not entitled to Limited Capability for Work then they may have incurred an overpayment as entitlement ceases.
If you have any customer’s who are in doubt please ask them to input details to their journal, or come in and see us in the jobcentre if they would like to speak to someone in person.”
All the words are there - now just need to get them in the right order.
Hi Maggie,
Not sure it’s possible for you to send me a copy of the email correspondence you’ve had with your local DEA?
The problem of UC is now increasingly being raised on our disabeld students helpline.
We’re hoping to be able to again raise the issue in person with the Minister for Disabled Pople via the All-Party Parliamentary Group for Disability.
It would be useful to highlight the confusion and lack of consistent approach JCPs seem to be taking.
Thanks,
Ken
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UT decision just published that confirms reg 33(2) provides that a student getting DLA/PIP is treated as having LCW for purposes of income-related ESA - [2018] UKUT 304 (AAC)
Judge Wikeley even quotes the CPAG handbook at para 10…
[ Edited: 9 Oct 2018 at 09:13 am by Daphne ]UT decision just published that confirms reg 33(2) provides that a student getting DLA/PIP is treated as having LCW for purposes of income-related ESA - [2018] UKUT 304 (AAC)
Judge Wikeley even quotes the CPAG handbook at para 10…
A really appalling case. The argument was bound to succeed and was spelled out clearly at every stage but apparently everyone below UT level just ignored it.
If stakeholders are still looking for examples, that might be one…
Judge Wikeley was quite damning -
The Appellant’s support worker, Ms C Sullivan, had repeatedly spelt out the case on his behalf. She set it out in the request for a mandatory reconsideration, in the notice of appeal, in a post-hearing application for a set aside and in a subsequent application for permission to appeal. She had made the point very shortly and very clearly. She had specifically referred to regulation 33(2) in the notice of appeal. She really could not have made the point any more clearly and yet for some reason her argument was repeatedly ignored. Reading the grounds of appeal is always a good place to start.
What is more worrying is the tribunal apparently failed to pick up on 33(2) as well.
What more can be done in these cases - surely once it got to UT the DWP legal rep looked at it and didn’t lapse it so at what level do people know about these exceptions? The one for dialysis comes up more often than it should as well. Do the DWP think that over-worked and under-funded welfare rights services are just making up legislation to suit our own ends? I would love to see the SoR in this case, how could the FTT overlook/ignore the submission of Ms Sullivan?
If stakeholders are still looking for examples, that might be one…
I have sent them a little email mentioning it along with another example that has been sent to me…
The decision makers didn’t even need to dust off Sweet and Maxwell. The Decision Makers Guide covers this neatly at 42125.
The decision makers didn’t even need to dust off Sweet and Maxwell. The Decision Makers Guide covers this neatly at 42125.
Quite! But again I think this falls in the black hole between reg 29 and 35!
What more can be done in these cases - surely once it got to UT the DWP legal rep looked at it and didn’t lapse it so at what level do people know about these exceptions? The one for dialysis comes up more often than it should as well. Do the DWP think that over-worked and under-funded welfare rights services are just making up legislation to suit our own ends? I would love to see the SoR in this case, how could the FTT overlook/ignore the submission of Ms Sullivan?
Well the rep at UT couldn’t lapse the appeal once the FtT made its decision.
But otherwise, the suggestion from the decision seems to be that the Tribunal had got itself rather in the rut of deciding cases on the basis of the points scores and regs 29/35 and simply didn’t appreciate that there were other ways of passing the test. Which I imagine is the same of DWP decision makers.