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Forum Home  →  Discussion  →  Decision making and appeals  →  Thread

UC appeal - Does it need to continue?

AY1
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Newcastle Council Welfare Rights Service

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Hi all - Just looking for a little advice.

Client - on ESA with WRAG and in late 2018 attends WCA and is found to be capable for work. She appeals and claims UC. Completes UC50 - has medical assessment and is again found to be capable of work. She appeals this decision as well

ESA appeal is heard without our support and is allowed. The WRAG is backdated and also added to her UC award from the beginning of her claim. She has now received her UC appeal papers. I’m trying to work out:

1) Could she realistically withdraw her UC appeal, given that the LCW element is in her UC claim now by virtue of her successful ESA appeal? My logic (rightly or wrongly) is that she has LCW as a result of the ESA appeal and if she withdraws her appeal, this should remain? or is there another issue I’m overlooking? Obviously if there is scope for her to be considered as having LCWRA in the UC appeal then it would be worth continuing but given that she has always been in WRAG then the odds of this are low.

2) If she continues her UC appeal and it fails, would this cease the payment of the LCW element in her claim?

The client is questioning why she should continue her appeal when she is already considered to have LCW.  The DWP reference the ESA successful appeal in her UC papers but have not overturned their original decision as a result of the ESA appeal.

Any advice/opinions would be greatly appreciated.

Income Max
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Weymouth & Portland Citizens Advice

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She will still need to continue with her UC appeal. Each WCA decision is only effective until the next WCA decision. So, the LCW decision from the ESA appeal is only effective up until the date of the UC decision. She is due a backpayment of LCW up until the date of the UC decision, not beyond. If she wants LCW beyond that then she needs to get the UC decision changed by continuing with her appeal.

AY1
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Newcastle Council Welfare Rights Service

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thanks for that. I haven’t seen her UC Journal to assess her payment but she tells me that she has the LCW element ongoing at the moment so I will need to check that.

Peter Turville
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AY1 - 19 November 2019 09:50 AM

thanks for that. I haven’t seen her UC Journal to assess her payment but she tells me that she has the LCW element ongoing at the moment so I will need to check that.

Its not unknown for UC to carry on paying the element beyond the UC WCA decision although it should only be paid for the closed period as Income Max says. It is possible that following the ESA decision and on payment of the arrears in UC the original UC WCA decision was revised but UC have failed to record / notify that decision to the claimants account (have seen cases where UC have confirmed this). Equally it is possible that they don’t know what they are doing or why!

It’s a kind of reverse of the failure to apply a UC LCFW/LCFWRA element after a successful ESA appeal where there has not been a subsequent UC WCA decision. We have a case at present where UC are refusing to include an element following a successful ESA appeal (and confirmed revised UC WCA decision) for reasons that only Kafka could conjure! 

What hope is there UC can get basic stuff correct after 5 years?

Elliot Kent
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Agree with the above, although it is unusual in a case like this for the UC decision not to be revised in line with the FtT decision. Your client could withdraw the appeal and hope that nobody in UC-land notices (and risk it being spotted later and an overpayment imposed) or carry on with the appeal and argue that the previous FtT’s decision should stand.

I suppose you want to specifically put it to the DWP that the FtT just recently allowed the ESA appeal and (presumably) recommended that the claimant not be re-assessed for a particular duration which very strongly suggests they ought to change their minds rather than insisting on a re-run

Perhaps a mischievous clerk will arrange for it to be heard by the same panel, who presumably will have something to say…

AY1
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Just as an update to this having now seen the appeal papers.

UC seem to be accepting that she has LCW and the wording suggests that they have revised their decision to include LCW element, and have backdated the award etc.

The appeal seems to be ongoing as on her SSCS1 when somebody else completed it for her it states ‘I do not agree with the decision to refuse me LCW and LCWRA.

So the appeal has continued on the grounds that UC think she feels that LCWRA should be awarded. Client doesn’t actually think this. She has only ever had WRAG in ESA and having discussed LCWRA with her, she doesn’t think this applies.

So now looking at withdrawing appeal again as it looks as though doing this will not affect entitlement in any way.

Elliot Kent
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AY1 - 29 November 2019 10:28 AM

Just as an update to this having now seen the appeal papers.

UC seem to be accepting that she has LCW and the wording suggests that they have revised their decision to include LCW element, and have backdated the award etc.

The appeal seems to be ongoing as on her SSCS1 when somebody else completed it for her it states ‘I do not agree with the decision to refuse me LCW and LCWRA.

So the appeal has continued on the grounds that UC think she feels that LCWRA should be awarded. Client doesn’t actually think this. She has only ever had WRAG in ESA and having discussed LCWRA with her, she doesn’t think this applies.

So now looking at withdrawing appeal again as it looks as though doing this will not affect entitlement in any way.

Oh okay, things are starting to make a bit more sense now.

DWP have agreed that their initial no-LCW decision was wrong and that they should have found LCW but not LCWRA. But they have not revised their decision because doing so would lapse the appeal and current DWP policy is only to lapse appeals where either this is to give the claimant all they are asking for or the claimant agrees with the lapsing.

As they are not prepared to give your client what they appeared to be asking for, they have not revised their decision and have only made a concession in the appeal that LCW applies. The Tribunal will have to consider that concession but isn’t bound by it.

Your client shouldn’t withdraw the appeal as the decision has not actually been revised. The DWP’s concession will not take effect if she withdraws.

Ideally, you could just talk to the UC DM and agree for the decision to be revised. If that isn’t possible, then write to the Tribunal explaining that your client notes the DWP’s concession, agrees with it and asks for the appeal to be allowed to that extent only. Hopefully the DWP would then take the hint and revise.

[ Edited: 29 Nov 2019 at 10:54 am by Elliot Kent ]