Date of LCW on a new assessment
Hi, wondering whether you can help.
I have a client who has had a decision that she has been overpaid UC following a LCW assessment.
She was on ESA but migrated onto UC and her LCW and LCWRA was transitionally protected.
She then got invited to another WCA, which she attended on 6/6/18. She then received a decision dated 9/7/18 that she had LCW but not LCWRA.
They have applied this decision from the date of the LCW assessment on 6/6/18 and said she has been overpaid UC.
We submitted a MR, arguing the decision should have taken affect from their formal decision notice on 9/7/18 and as a result she hadn’t been overpaid.
She has received a MR notice stating that, prior to her UC claim, she was found to have LCW and LCWRA with a prognosis of 12 months, which was payable from the start of her UC claim.
They haven’t stated what date she was found to have LCW and LCWRA, so I’m unsure what date the 12 months expired.
They go on to say that at the end of the 12 month period, a referral was made for her to attend a WCA. They state that their decision made on 9/7/18 wasn’t a revision or a supersession of the previous decision made and ‘this was a new decision and therefore it is effective from 6/6/18 from when she attended the WCA’.
What do people think of this?
It is a superseding decision (you wouldn’t expect UC to understand that, but it is). The issue is, from what date does it have effect?
I would suggest two alternative argument for the effective date being the AP in which the decision is made rather than an earlier one.
1. Change not reasonably expected to be notified
UC Reg 41(1)(b) allows the Secretary of State to carry out a fresh WCA in order to determine whether there has been a change of circumstance. Para 20 of Schedule 1 to the 2013 D&A Regs says that a change of circumstance has effect from the beginning of the AP in which it happens, subject to exceptions including a case where the claimant has an LCW determination, has a change of circs they should notify but they cannot reasonably be expected to know they should notify the change - see para 25. In that case the change has effect from the AP in which the decision was made.
You would want to argue that the improvement in the claimant’s health is a change of circumstance that she could not have been expected to report. I would imagine it is not easy to pinpoint the date on which such a change actually occurs anyway - it is a gradual process over time, with bad days along the way, but eventually DWP is able to say that no later than today you have become fit for work once more.
2. Decision prompted by LCW determination on Secretary of State’s initiative
Alternatively, you could argue that the decision has been made under D&A Reg 26(1)(b) (LCW determination) in which case it has effect under Reg 35(9)(b) from the assessment period in which the decision is made. That would rely on an argument that replacing LCW and LCWRA status with LCW alone requires a determination that the claimant has LCW. I think it does and I prefer this argument to the change of circumstance one above.
I think it’s wrong! The decision from a work capability assessment doesn’t have an end date - the prognosis is just an indication as to when might reassess - reg 39 of the UC regs simply says -
39.—(1) A claimant has limited capability for work if—
(a)it has been determined that the claimant has limited capability for work on the basis of an assessment under this Part or under Part 4 of the ESA Regulations; or
(b)the claimant is to be treated as having limited capability for work (see paragraph (6)).
Therefore the decision applied until there is a supersession - reg 35(9) of the UC(decisions and appeals) regs states -
(9) In the case of universal credit, a superseding decision made in accordance with regulation 26(1) that embodies a determination that the claimant has limited capability for work or limited capability for work and work-related activity takes effect—
(a)in a case to which regulation 28(1) (period for which the LCW or LCWRA element is not to be included) of the Universal Credit Regulations applies, from the beginning of the assessment period specified in that paragraph; or
(b)in any other case, from the beginning of the assessment period in which the decision (if made on the Secretary of State’s own initiative) or the application for a supersession was made.
so I reckon the award should only change from the beginning of the assessment period in which 9/7/18 falls.
Thanks both, that was helpful. I’ll speak to my client and hopefully she’ll want to go ahead with the appeal.