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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

LCWRA

 

nevip
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I don’t know if this has been asked and answered before.  Sorry about the length.

Scenario:

Client on IR/ESA.  Fails WCA, appeals, and claims UC.  Subsequently, passes WCA in UC and put in WRAG.  After that, ESA appeal is heard, won and client put is SG for period on ESA.  I am looking at whether there is scope to argue that reg’19 of the UC transitional provisions can be read so as to get my client the LCWRA component included in his UC.  However, at first sight the reg’ doesn’t seem wide enough to cover it.

Transition from old style ESA
19.—(1) This regulation applies where—
(a)an award of universal credit is made to a claimant who was entitled to old style ESA on the date on which the claim for universal credit was made or treated as made (“the relevant date”); and
(b)on or before the relevant date it had been determined that the claimant was entitled to the work-related activity component or to the support component.
(2) Where, on or before the relevant date, it had been determined that the claimant was entitled to the work-related activity component—
(a)regulation 27(3) of the Universal Credit Regulations (award to include LCW and LCWRA elements) does not apply; and
(b)the claimant is to be treated as having limited capability for work for the purposes of regulation 27(1)(a) of those Regulations and section 21(1)(a) of the Act.
(3) Unless the assessment phase applied and had not ended at the relevant date, in relation to a claimant who is treated as having limited capability for work under paragraph (2)—
(a)regulation 28 of the Universal Credit Regulations (period for which the LCW or LCWRA element is not to be included) does not apply; and
(b)the LCW element is (subject to the provisions of Part 4 of the Universal Credit Regulations) to be included in the award with effect from the beginning of the first assessment period.
(4) Where, on or before the relevant date, it had been determined that the claimant was entitled to the support component—
(a)regulation 27(3) of the Universal Credit Regulations does not apply; and
(b)the claimant is to be treated as having limited capability for work and work-related activity for the purposes of regulation 27(1)(b) of those Regulations and section 19(2)(a) of the Act.
(5) Unless the assessment phase applied and had not ended at the relevant date, in relation to a claimant who is treated as having limited capability for work and work-related activity under paragraph (4)(4)(b)—
(a)regulation 28 of the Universal Credit Regulations does not apply; and
(b)the LCWRA element is (subject to the provisions of Part 4 of the Universal Credit Regulations) to be included in the award of universal credit with effect from the beginning of the first assessment period.
(6) For the purposes of this regulation, a determination that the claimant was entitled to the work-related activity component or, as the case may be, the support component, is to be taken into account even if the award of old style ESA subsequently terminated (in so far as it was an award of income-related employment and support allowance) before the date on which that determination was made, by virtue of an order made under section 150(3) of the Act.
(7) Where a claimant is treated, by virtue of this regulation, as having limited capability for work or, as the case may be, limited capability for work and work-related activity, the Secretary of State may at any time make a fresh determination as to these matters, in accordance with the Universal Credit Regulations.
(8) In this regulation and in regulations 20 to 27—
“assessment phase”, “support component” and “work-related activity component” have the same meanings as in the 2007 Act
“incapacity benefit” and “severe disablement allowance” have the same meanings as in Schedule 4 to that Act;
“LCW element” and “LCWRA element” have the same meanings as in the Universal Credit Regulations
(9) For the purposes of this regulation and regulation 20, references to cases in which the assessment phase applied are references to cases in which sections 2(2)(a), 2(3)(a), 4(4)(a) and 4(5)(a) of the 2007 Act applied and references to cases in which the assessment phase did not apply are references to cases in which those sections did not apply

I am seeking to run an argument that the ESA determination should be taken as made before the UC award by virtue of the dicta laid down in R (IB) 2/04 that the tribunal stands in the decision makers shoes.  And, that as the later tribunal’s determination ‘travels back in time’ (as it were) and substitutes itself for the decision maker’s determination, then it is effectively a determination made before the UC award.

Thoughts anyone?

     
Jeremy Barker
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Citizens Advice North Lincolnshire

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I don’t know - but I also have a client in exactly the same position.

I think part of the answer is in this thread: https://www.rightsnet.org.uk/forums/viewthread/13672/ - at least in regard to whether the subsequent determination of the client having LCW can be revised to LCWRA even though that happened several months ago.

 

      [ Edited: 6 Dec 2018 at 10:01 am by Jeremy Barker ]
past caring
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nevip - 05 December 2018 03:57 PM

I am seeking to run an argument that the ESA determination should be taken as made before the UC award by virtue of the dicta laid down in R (IB) 2/04 that the tribunal stands in the decision makers shoes.  And, that as the later tribunal’s determination ‘travels back in time’ (as it were) and substitutes itself for the decision maker’s determination, then it is effectively a determination made before the UC award.

Thoughts anyone?

I think that works up to the point that the WCA was carried out/the capability for work decision was made for UC - but only to that point. The effect of the tribunal’s decision (as you know) is such that it is as if the negative ESA decision of whatever date was a positive one (that claimant had LCFWRA). So he gets that component in his UC from the outset. But that fact neither prevents a further WCA in UC nor invalidates the determination that he has LCFW, but not LCFWRA - see para. 7 of reg. 19. That decision would need to be challenged separately.

     
HB Anorak
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that fact neither prevents a further WCA in UC nor invalidates the determination that he has LCFW, but not LCFWRA - see para. 7 of reg. 19. That decision would need to be challenged separately.

True, but any decision maker with common sense would revise the UC decision under D&A Reg 11(2) unless they believe there has been a clear improvement in the claimant’s ability to undertake work related activity: if the ESA appeal succeeded and the circumstances are the same, you would expect the UC appeal to succeed as well and Reg 11 allows revision without requiring the claimant to go through the ritual of challenging the new decision.

     
Timothy Seaside
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past caring - 06 December 2018 10:48 AM

I think that works up to the point that the WCA was carried out/the capability for work decision was made for UC - but only to that point. The effect of the tribunal’s decision (as you know) is such that it is as if the negative ESA decision of whatever date was a positive one (that claimant had LCFWRA). So he gets that component in his UC from the outset. But that fact neither prevents a further WCA in UC nor invalidates the determination that he has LCFW, but not LCFWRA - see para. 7 of reg. 19. That decision would need to be challenged separately.

This is more or less exactly what I was going to say. I think you’re absolutely right that the tribunal decision has the effect that the ESA WCA decision is revised back in time - how else could you ever get an underpayment? But you’re still left with a LCW decision on the UC which will need its own challenge (assuming your client disagrees with it, of course).

I too have a client in a similar position (except she received the WCA form for her UC claim the day after her successful ESA appeal). But at least the DWP aren’t arguing that she won’t get the LCWRA element in her UC - they’re just saying they’re waiting for confirmation of her appeal decision.

     
Timothy Seaside
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HB Anorak - 06 December 2018 11:34 AM

True, but any decision maker with common sense would revise the UC decision under D&A Reg 11(2) unless they believe there has been a clear improvement in the claimant’s ability to undertake work related activity: if the ESA appeal succeeded and the circumstances are the same, you would expect the UC appeal to succeed as well and Reg 11 allows revision without requiring the claimant to go through the ritual of challenging the new decision.

A decision maker with common sense? A benefits expert with a sense of humour!

     
past caring
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HB Anorak - 06 December 2018 11:34 AM

that fact neither prevents a further WCA in UC nor invalidates the determination that he has LCFW, but not LCFWRA - see para. 7 of reg. 19. That decision would need to be challenged separately.

True, but any decision maker with common sense would revise the UC decision under D&A Reg 11(2) unless they believe there has been a clear improvement in the claimant’s ability to undertake work related activity: if the ESA appeal succeeded and the circumstances are the same, you would expect the UC appeal to succeed as well and Reg 11 allows revision without requiring the claimant to go through the ritual of challenging the new decision.

Absolutely - and I assumed nevip was aware of this. My point was only that even assuming a decision maker with common sense, you still need to do something to get the damn thing in front of him/her in the first place.

     
Brian JB
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Just thinking, does the UC WCA decision (decision B) actually “supersede decision A” or “decide a further claim” so that Reg 11(2) can apply? I am only thinking that the UC “claim”, as such, will already have been “decided” if an award is in place, way before the WCA decision/determination

     
HB Anorak
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Fair point - and the same could be said if there are multiple superseding decisions during the period when the appeal is outstanding, since only the first of those would supersede Decision A: for completeness Reg 11(2)(c) ought to continue:

(iii) supersedes a decision referred to in head (i) or (head (ii), or
(iv) supersedes a decision referred to in head (iii)

But it doesn’t, so perhaps it is necessary for the person to apply for revision of the UC superseding decision after all.  I thought for a minute there might be a further problem in that the result of the WCA changes nothing if it’s WRAG only, so would there even be a superseding decision to revise, whether under Reg 11 or on the claimant’s application?  But then I realised: the effect of the ESA appeal is that the decision on the UC claim is revised to include the LCWRA element from the outset under the transitional provisions regs, so the UC WCA requires a superseding decision to take it away again ... and that superseding decision may then be revised, but probably requires an application for revision rather than DWP revising under Reg 11 on their own initiative.

     
HB Anorak
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An update following the intervention of a non-RN member who is an absolute master at navigating the regs governing this sort of issue.  The solution lies not in the D&A Regs at all, but in Article 24 of the WRA 2012 No 9 Commencement Order.  It caters for this exact scenario - see in particular the reference in para (2) to the first UC decision having been superseded.

     
Brian JB
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Thank you (and your colleague/friend), that’s brilliant.

     
Elliot Kent
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Whilst of course the legal issues here are interesting, I would simply deal with it by requesting an MR of the UC WCA decision, pointing out that it is entirely at odds with the very recent Tribunal decision and explaining that the request is late (to the extent that it is relevant) because the Tribunal decision only recently came into existence. Unless the decision maker has been lobotomised, they would surely revise the decision and award LCWRA.

     
nevip
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HB Anorak - 06 December 2018 01:33 PM

An update following the intervention of a non-RN member who is an absolute master at navigating the regs governing this sort of issue.  The solution lies not in the D&A Regs at all, but in Article 24 of the WRA 2012 No 9 Commencement Order.  It caters for this exact scenario - see in particular the reference in para (2) to the first UC decision having been superseded.

That is brilliant HB Anorak.  Many thanks and please thank the person who came up with that.  I think I will lead with that.  And many thanks to all others who posted replies.  Now I’ve got plenty to work with.  I will keep you all updated.

     
Jeremy Barker
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I would also like to thank everyone for their replies - I now know what to advise my client.