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The devil makes work for idle hands… components of a decision

 

Dan Manville
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I posted about this many moons ago but didn’t get much response, however I’m reprising it here in a different context.

I am wondering whether, in UC, a decision that does not include the LCWRAE is, implicitly, a decision that the person does not have LCWRA.

I have considered Judge Rowland’s decision in MC & JH ; the ESA time limiting decision where he held that a person could appeal on grounds they should have been in the support group when their 365 days were up. His reasoning doesn’t go as far as making the finding I suggest but it is necessarily implicit to my mind.

I am sure there is a decision by Judge Wright along similar lines but I can’t remember the context so I’m struggling for search terms.

Where this might fall down is that the people I have in mind would likely be reg 35(2) in old money; they must have been assessed to decide they don’t meet a sched 3 descriptor, but although UC don’t comprehend it yet they can do that assessment clerically without referral to CHDA so I feel there might still be mileage.

Finally; as a resolution to the situation where people are not referred for assessment when they are hospitalised, I am wondering about launching late recons against the subsequent decisions that they’re not entitled to the LCWRAE; even before the WCA is complete.

Thoughts would be appreciated.

     
Elliot Kent
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I think you can establish from cases such as MC & JH, MF v Redcar and Cleveland BC [2015] UKUT 634 (AAC) and R(IB)2/04 the following:

(1) There is only ever one operational entitlement decision on an award - MF at 11 - so whilst the DWP will compartmentalise into e.g. “WCA decisions”, “right to reside decisions” and then the standard case manager issued monthly award notifications,  all you really have is a series of decisions superseding one another.
(2) The DM is not required to consider, as part of these decisions, matters which aren’t raised - MC at 36-37 . So I don’t think you can quite say that not including the LCWRA element is an implicit refusal of it as against the DM or case manager just not having considered it.
(3) However, the DM could take the opportunity to consider any aspect of entitlement at all - MC at 37.
(4) The Tribunal on appeal - and equally the decision maker on a request for revision - can exercise any of the powers which might have been exercised by the DM - R(IB)2/04.
(5) This then extends to considering aspects of entitlement which the DM had no reason to believe were relevant.

It seems to me that it follows from this that any of the monthly award notices issued by the case managers can then be challenged on the basis that the SSWP could have taken the oppurtunity to conduct any sort of left-field supersession you could think of.

I think that - provided your clients have been providing fit notes for 3 months so as to meet reg 28(2)(b) or are exempt from that requirement - it is open to you to request revision and appeal a routine monthly award notice on the basis that the SSWP acting through the case manager could have, apropos of nothing, short-circuited the entire normal WCA process, carried out a WCA on their own and reached the conclusion that ex-reg 35 applied.

How the DWP would react to this, I don’t know.

     
Charles
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There is a slight difference between ESA and UC regarding LCW/LCWRA status:
For ESA, the question whether a claimant has LCW/LCWRA is to be decided by a WCA.
For UC, you only have LCW/LCWRA status if an assessment has been made (unless the claimant falls within a case where they are to be treated as having LCW/LCWRA). See UC Regs, r39(1)(a) & 40(1)(a). So, if an assessment has not been made, they will not have that status however incapacitated they are.

This being the case, unless you are arguing they come within Schedules 8 or 9 and are therefore automatically treated as having LCW/LCWRA, can you ask a Tribunal to proactively make an assessment? After all, as things stand the decision is correct, because no assessment has been made.
Of course, if an assessment has been made, and it has been determined that the claimant does not have LCW/LCWRA, then that determination is a component of the outcome decision, which can be changed on appeal.

Concerning the regular monthly award notices - I think most of them are not actually decisions. See for example the procedure established in r41(3) of the UC etc (D&A) Regs.

     
Elliot Kent
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It’s true that LCW/LCWRA can only be established by an “assessment” but I do not understand the Regs to define any particular procedure by which an “assessment” needs to be conducted. Ultimately, the “assessment” takes place in the decision maker’s head as they consider which of the descriptors or other criteria are satisfied.

The SSWP could, at any given point, go through the mental process:

“I consider that I need to decide whether LCWRA element can be paid. This must be determined by a WCA. I decide to carry out an assessment under reg 41(1)(a). I do not require any information or attendance at a medical. I determine on the basis of the Schedules that no descriptors are satisfied but I find that the claimant meets para 4, Sch. 8 & para 4, Sch. 9. I therefore determine on the basis of assessment that the claimant has deemed LCWRA. As the conditions of reg 28(2)(b) are met, I award the LCWRA element.”

Because they could have done that - even if the chances of them doing so are virtually nil - I think that in our hypothetical, the Tribunal would inherit the power to do so also. Whether it would use that power or not is another question.

The conceptual status of UC award notices is possibly a broader topic on which I think you and I may have different views Charles - but I think it is academic for the purposes of Dan’s hypothetical case because in practice, the DWP does issue an award notice to the claimant every month (at least on a digital claim) which states on its face that it carries appeal rights. I think that, as per MC at para 29-31, even if these notices do not contain any change they are capable of being appealed.

     
Charles
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I suppose my argument is based on the principle that a Tribunal can only consider the facts up to the date of the decision. At that point no assessment had been made.
For ESA, the assessment is not critical, as it is just a tool to decide the question of whether the claimant has LCW/LCWRA, so a later assessment can tell us about the facts at the time of the decision.
However, for UC, the assessment is what gives LCW/LCWRA status, so can an assessment made after the date of the decision being appealed (including any potential assessment carried out by the Tribunal itself) be used?

By the way, in the ‘mental process’ example you give, I do agree with you. As it is relying on Schs. 8 & 9, no assessment is required; it is simply a question of whether any of the criteria in those Schedules are met. This can definitely be looked at on appeal.

About UC award notices, I hadn’t considered the wording used in regular award notices. However, doesn’t the case law you quote still require the supersession be permissible (even if not required)?

     
Dan Manville
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Elliot Kent - 22 June 2019 12:17 PM

could have, .

They’re in hospital.

The sticking point is that they’ve no GP so can’t provide a med3.

should have ???

     
Elliot Kent
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I suppose you are viewing the “assessment” as an event which must occur, prior to and severable from the formal decision, whereas I am viewing “assessment” as legally indistinguishable from the usual determination/decision making process and simply descriptive of the logical route the DM needs to follow on the road to the decision.

So if you are right, then it would be necessary to invite the Tribunal to go back in time and input an entirely new assessment “event” into the chronology of the claim which may be exceeding their powers - whereas for me, its no different to any other case where the FtT takes over all the powers of the DM.

(My process doesn’t work if you are right, because reliance on para 4 requires the “assessment” to have taken place but not have been satisfied as per reg 39(7) and 40(6).)

I think that the analogy is with PIP. PIP entitlement is to be “determined on the basis of assessment’ (reg 4(1) PIP Regs) which means the process of considering descriptors and adding up points. But if PIP is refused without an assessment because of a “negative determination” due to non-attendance, the FtT still has the power to conduct that “assessment” for itself on appeal - as was agreed inter partes and confirmed by Judge Church in CPIP/1440/2018 (unpublished)  and as per Judge Wikeley in AI v SSWP (PIP) [2019] UKUT 103 (AAC).

Dan Manville - 24 June 2019 11:41 AM

The sticking point is that they’ve no GP so can’t provide a med3.

None of this is going to help you if there are no medical certificates due to reg 28(2)(b).

 

 

     
Charles
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Elliot Kent - 24 June 2019 12:11 PM

I suppose you are viewing the “assessment” as an event which must occur, prior to and severable from the formal decision, whereas I am viewing “assessment” as legally indistinguishable from the usual determination/decision making process and simply descriptive of the logical route the DM needs to follow on the road to the decision.

So if you are right, then it would be necessary to invite the Tribunal to go back in time and input an entirely new assessment “event” into the chronology of the claim which may be exceeding their powers - whereas for me, its no different to any other case where the FtT takes over all the powers of the DM.

(My process doesn’t work if you are right, because reliance on para 4 requires the “assessment” to have taken place but not have been satisfied as per reg 39(7) and 40(6).)

I think that the analogy is with PIP. PIP entitlement is to be “determined on the basis of assessment’ (reg 4(1) PIP Regs) which means the process of considering descriptors and adding up points. But if PIP is refused without an assessment because of a “negative determination” due to non-attendance, the FtT still has the power to conduct that “assessment” for itself on appeal - as was agreed inter partes and confirmed by Judge Church in CPIP/1440/2018 (unpublished)  and as per Judge Wikeley in AI v SSWP (PIP) [2019] UKUT 103 (AAC).

That’s a better explanation of my position than I managed!

PIP uses the same wording as ESA, so I would agree for both of those that a tribunal could make an assessment. Both of those say “is to be determined on the basis of a ... assessment”. UC however says “A claimant has limited capability for work if it has been determined ... on the basis of an assessment”.

     
Liz S
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If it is not possible to get a Fit Note, could another health professional involved with the client write a statement confirming the LCW?

     
Dan Manville
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Elliot Kent - 24 June 2019 12:11 PM

None of this is going to help you if there are no medical certificates due to reg 28(2)(b).

 

28(2)(b) simply requires evidence in accordance with the Medical Evidence Regulations, those regulations can accept evidence other than a med3 by virtue of regulation 2(1A). It’s only reg 99 UC regs that prescribe a med3 for the purposes of lifting the Work Related requirements.

I trust the rest was directed at Charles; you and I are on the same hymn sheet as to what consitutes the “assessment”; it’s just a decision and doesn’t mandate the involvement of CHDA. If UC accepted that (and they will eventually) my life would be much easier.

     
Dan Manville
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Liz S - 24 June 2019 04:47 PM

If it is not possible to get a Fit Note, could another health professional involved with the client write a statement confirming the LCW?

They already have done but JCP are refusing to accept it’s sufficient.

     
Elliot Kent
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Dan Manville - 24 June 2019 04:57 PM

28(2)(b) simply requires evidence in accordance with the Medical Evidence Regulations, those regulations can accept evidence other than a med3 by virtue of regulation 2(1A).

True enough.

I suppose that - theoretically - you could argue everything that I have said above and that the FtT should additionally find that the evidence provided was sufficient to meet the MER requirements and that therefore the requirements of reg 28(2)(b) were also met.

Obviously every step that you add to this exponentially increases the chances of the FtT refusing to play along or simply striking your case out.

      [ Edited: 24 Jun 2019 at 05:20 pm by Elliot Kent ]
Charles
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It’s simpler than that. A self-certificate (Reg 5 of the Medical Evidence Regs) is enough to start the relevant period. See ADM F5031. The first example in the ADM suggests even a simple phone call informing DWP of your condition is enough.