Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Covid-19: Welfare benefit issues  →  Thread

Work Capability Assessments during covid-19

KMJones
forum member

Early Warning System, Child Poverty Action Group

Send message

Total Posts: 43

Joined: 23 October 2018

CPAG’s Early Warning System is hearing that a number of people are not being assessed, despite waiting a long time for a WCA to be scheduled.

On 16 March, the government announced that face-to-face assessments are suspended for 3 months, and that telephone and paper assessments may be carried out for those who had a WCA scheduled. https://www.gov.uk/government/news/face-to-face-health-assessments-for-benefits-suspended-amid-coronavirus-outbreak

And on 23 March, they announced that there would be no reviews or reassessments for those who were already in receipt of PIP or LCW/LCWRA elements in UC. https://www.gov.uk/government/news/face-to-face-health-assessments-for-benefits-suspended-amid-coronavirus-outbreak

It’s not clear what happens to those who are not receiving any additional elements (or have LCW status) and were waiting for the assessment to be scheduled, having already submitted their UC50 or those who are yet to return the form.

We’ve been advising people to consider challenging the delay if it is unreasonable and causing significant hardship. Either by way of official complaint and/or using our template Judicial Review letter, available here: https://cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/work-capability-assessments.

What’s happening for your clients?

Please tell me about individual anonymised cases using the EWS submission form: https://childpovertyactiongroup.wufoo.com/forms/m1vc0zeg1sr9zgh/

shawn mach
Administrator

rightsnet.org.uk

Send message

Total Posts: 3395

Joined: 14 April 2010

KMJones - 12 May 2020 09:26 AM

... Please tell me about individual anonymised cases using the EWS submission form: https://childpovertyactiongroup.wufoo.com/forms/m1vc0zeg1sr9zgh/

Or even post details here 😁

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3107

Joined: 14 March 2014

On Monday DWP updated info on its new-style ESA PAGE to say -

How the assessment happens
Assessments are currently taking place over the phone because of coronavirus (COVID-19).

If you cannot use the phone, you’ll stay on the ‘assessment rate’ until you can be assessed face-to-face or until your New Style ESA ends.

You can have someone else on the call with you, for example a friend or support worker. Ask the assessor to call them if they’re not with you when the assessment starts.

It doesn’t seem to say anything about paper-based assessments and seems to imply that if you can’t manage a phone assessment you just have to wait on assessment rate!!

I’ve emailed the DWP for clarification but I’d be interested to know if people are still getting assessed on paper?

WR Adviser
forum member

Welfare rights worker - Community Law Service, Northampton

Send message

Total Posts: 77

Joined: 22 June 2010

And no such update that I have seen for UC WCA’s - have I missed that?  (Sorry, I know that does not answer your question!)

Carolyn McA
forum member

Adviser, Citizens Advice and Rights Fife

Send message

Total Posts: 53

Joined: 17 April 2019

I realise that this is quite a late response, but I’ve had good results from chasing via the CHDA customer service email .(JavaScript must be enabled to view this email address) (as recommended in https://www.rightsnet.org.uk/forums/viewthread/16118 post #17).
Two clients had experienced long delays. Client 1, registered blind (reg. cert. supplied in evidence with UC50) and in receipt of PIP ER both comps, applied for UC 11/2/20, previous ESA award having been terminated due to fraud with o/p for last few months of claim but had heard nothing about WCA by 8/6/20; initial contact led to CHDA saying he had to wait for face to face assessment but when we provided the evidence of his PIP award he was awarded LCWWRA without further assessment, not much more than two weeks after my initial enquiry.
Client 2 applied for UC 30/8/19 and was also awarded NSESA in October. Three scheduled WCA appointments were cancelled before lockdown (apparently due to the unavailability of a specialist doctor) and as of 24/3/20 she was again waiting for a new appointment to be allocated. I contacted CHDA on 21/7/20 to suggest that this was an unreasonable delay and the client was given a phone appointment for 5/8/20; I will follow up with her next week to get the decision. She was finding the delay very stressful, especially as she had recently received her letter about the end of 52 week NSESA entitlement so was just very relieved to get an assessment of any kind.
By way of contrast, a third client claimed NSESA and UC in May this year and by repeatedly calling CHDA on her own initiative was given an appointment for a WCA by phone on 28/7/20; she was awarded LCWWRA. She did have a lot of evidence including medical letters, a symptom diary going back to last October and occ. health evidence relating to the termination of her employment on capability grounds and by the time she was assessed she had also had a telephone PIP assessment and been awarded DL SR and Mob ER, but it seems that determined chasing brought prompt attention.

GCH Tenancy Sustainment
forum member

Tenancy Sustainment Team Gloucester City Homes (GCH)

Send message

Total Posts: 38

Joined: 18 June 2020

Hi All,

Has there been any update on WCA’s for UC? Have a client who was told last month no telephone assessments were being completed and face to face were still suspended. Whilst she has not been waiting as long as others she is due to turn pension age in Jan and concerned she will miss out on the extra income if not completed prior to then.

Any thoughts or advice would be great…

dizzymare
forum member

Welfare benefits adviser - Dudley MBC

Send message

Total Posts: 278

Joined: 18 June 2010

I have just called health assessment provider as I have a client on UC who initially had an appointment Nov 2019 which she couldnt attend as she is affected by agoraphobia.  She is still waiting for WCA! operator advised still no face to face assessments and doesnt know when there will be. We are told that they want to assess my client face to face! She actually started sending in fit notes in November 2018! she currently doesnt receive PIP but has some evidence (which I havent yet seen) so hoping this might help to get a decision.. she does come across quite well on the telphone so im a bit wary of pushing for this.

ZoeHBF
forum member

Welfare and Housing, Helen Bamber Foundation (London)

Send message

Total Posts: 38

Joined: 14 May 2017

Hello - lots of our clients have been able to have remote telephone assessments of their capability for work during Covid-19 however for one of our clients, whose assessment was scheduled just before the very beginning of the first lockdown and cancelled when everything shut down. I’ve been trying to chase a decision on his LCW/RA due to his vulnerabilities which we have sent in evidence about and have contacted his MP to ask for an update on this, who quickly got a response from the DWP (copied and anonymised below). This has happened to another of our clients, who the CHDA have decided absolutely must have a face to face assessment, meaning that they’ve now been waiting 8 months for an assessment and decision with no indication of when they will be able to have a face to face assessment. In the case of the other client this has happened to, he has managed to be assessed remotely by PIP who have made an award, but apparently it isn’t good enough for CHDA! I was wondering if anyone has experienced this also, and any ways around it?

They said that they “understand your concerns for a speedy outcome for [NAME]: we would also like to undertake the WCA for them at the earliest opportunity however we take our medical guidance from The Centre for Health and Disability Assessments (CHDA).

The intention behind the Work Capability Assessment (WCA) is to determine an individual’s limited Capability for Work (LCW) based on the functional impact of their condition. As two people with the same condition can be affected in different ways, there is no condition-based entitlement to UC.

CHDA have used the UC50 medical questionnaire, Med 3 Doctor’s statement and a specialist letter and determined that the level of disability is unclear from the available body of evidence. They feel that a face to face assessment is required to clarify the level of disability, function and further explore risk in [CLIENT’S] case.

Unfortunately face to face assessments cannot take place with CHDA until it is safe to do so. UC will continue to pay [CLIENT] while awaiting the outcome of the WCA and if any Limited Capability for Work Related Activity (LCWRA) is due to [CLIENT] in future it will be backdated to when they would have been eligible to receive the extra amount.”

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3107

Joined: 14 March 2014

I’d be really interested to know if others are experiencing this. It’s something I’ve raised at the stakeholder’s forum a couple of times and they tend just to deflect saying they’re carrying out phone assessments where possible. I’ll raise it again with them…

Dan Manville
forum member

Greater Manchester Law Centre

Send message

Total Posts: 173

Joined: 22 January 2020

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3107

Joined: 14 March 2014

Thanks Dan :)

It might also be worth contacting CPAG JR project to do letter challenging their refusal to carry out WCA - or letter at top of this page might work

Sue Sowerby
forum member

Allerdale Citizens Advice Bureau

Send message

Total Posts: 36

Joined: 17 September 2010

We have also had a lot of clients who have been waiting up to a year for a WCA, they just don’t seem to be happening here (Cumbria) although PIP assessments have been going ahead pretty much ok by phone. I have spoken to CHDA today about a vunerable client, and they agreed to pull out his case to check whether he would be suitable for a telephone assessment, but advised that many still need to wait for a face to face. Our other issue now is whether any arrears of LCWRA would be backdated. The dwp quote from Zoe above seems to indicate that they should be, but we have one client who started the WCA in January, the assessment was cancelled due to the lockdown, and finally took place in August. A decision was issued in Sept to award the LCWRA element but this has not been backdated and has only been applied from the date of the decision. The client has asked several times about a backdate but has been told this will not happen, and the delay was due to covid and not their fault. Is there any guidance we can refer to to try and challenge this? I’ve got a feeling that otherwise this might start to become a major problem…

Va1der
forum member

Welfare Rights Officer with SWAMP Glasgow

Send message

Total Posts: 404

Joined: 7 May 2019

ADM F5031: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/864911/admf5.pdf

Failure to backdate LCWRA is to be a pretty common issue, either in cases where there is some dispute on when the claimants first submitted evidence of LCW, and in others where DWP seem to be whimsically inventing new rules on a case by case basis.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2333

Joined: 14 July 2014

Sue Sowerby - 20 November 2020 05:55 PM

the assessment was cancelled due to the lockdown, and finally took place in August. A decision was issued in Sept to award the LCWRA element but this has not been backdated and has only been applied from the date of the decision. The client has asked several times about a backdate but has been told this will not happen, and the delay was due to covid and not their fault. Is there any guidance we can refer to to try and challenge this? I’ve got a feeling that otherwise this might start to become a major problem…

Is this a first assessment or a re-assessment because the rules are different?

I am going to try and put together some sort of material on effective dates for re-assessments because its fairly complicated and is coming up quite a bit lately.

Sue Sowerby
forum member

Allerdale Citizens Advice Bureau

Send message

Total Posts: 36

Joined: 17 September 2010

Hi, it was a re-assessment for this client.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 785

Joined: 24 November 2017

Was the review initiated by DWP or did the client report a change of condition?

Sue Sowerby
forum member

Allerdale Citizens Advice Bureau

Send message

Total Posts: 36

Joined: 17 September 2010

The client reported a worsening of his condition in Jan 20, was sent a UC50 which he completed in March, then he had a telephone assessment in August. The decision was made in September and the LCWRA element only applied from the date of the decision.

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2333

Joined: 14 July 2014

If that’s the case, you should be asking for an MR on the basis that it was appropriate to supersede the decision to include the LCWRA element either from when the change occurred or when it was reported. See reg 23 & para 20/21, Schedule 1 D&A Regs 2013.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 785

Joined: 24 November 2017

Elliot Kent - 23 November 2020 05:12 PM

If that’s the case, you should be asking for an MR on the basis that it was appropriate to supersede the decision to include the LCWRA element either from when the change occurred or when it was reported. See reg 23 & para 20/21, Schedule 1 D&A Regs 2013.

Thanks Elliott, that’s where I was heading with my question. Unlike you however I wouldn’t have been able to quote the relevant regulation.

Sue Sowerby
forum member

Allerdale Citizens Advice Bureau

Send message

Total Posts: 36

Joined: 17 September 2010

Elliot Kent - 23 November 2020 05:12 PM

If that’s the case, you should be asking for an MR on the basis that it was appropriate to supersede the decision to include the LCWRA element either from when the change occurred or when it was reported. See reg 23 & para 20/21, Schedule 1 D&A Regs 2013.

Yes that’s what we have done. My collegue has just had a call from UC to say they are referring it to a tier 2 decision maker because of the ramifications!

Peter Donohue
forum member

Salford Welfare Rights

Send message

Total Posts: 25

Joined: 11 November 2020

Hi all - I understand all the ramifications discussed here (I think) but my case involves a first NSESA claim made in March this year with a telephone assessment subsequently undertaken in July but which was deemed to be “inconclusive” and requiring a f2f assessment to be conducted…..of course clt remains on assessment phase ESA until this is done…BUT….he is shortly due to have undergone his 365 days on LCW (in under 3 months now and has already had a letter warning him of this)  ......and of course no sign of any LCWRA being determined without completing the WCA .......all the stuff I have seen appears to indicate that a clt will remain on assessment phase until WCA is actually completed ....but can’t see how (clt here has too much capital for UC and thus is relying on NSESA in SG). As an aside, he is partially sighted and has been awarded SRDL of PIP meantime. Not sure a JR will find the delay unreasonable given Covid etc…any ideas??

Dan Manville
forum member

Greater Manchester Law Centre

Send message

Total Posts: 173

Joined: 22 January 2020

Elliot Kent - 23 November 2020 05:12 PM

If that’s the case, you should be asking for an MR on the basis that it was appropriate to supersede the decision to include the LCWRA element either from when the change occurred or when it was reported. See reg 23 & para 20/21, Schedule 1 D&A Regs 2013.

Now I’ve not looked at the regs, but I wonder what mileage there is in arguing that an ESA/UC50 is notification of a change of circs even when issued at DWP’s initiative. It would certainly get round the problem of people having waited a long time for a WCA only to be accepted as LCWRA.

[ Edited: 10 Dec 2020 at 03:20 pm by Dan Manville ]
Peter Donohue
forum member

Salford Welfare Rights

Send message

Total Posts: 25

Joined: 11 November 2020

Hi - my understanding is that the remedy around a supersession has legs but NOT (as in my case) for a “first-time” claimant.

Also, and crucially, if we were talking about a failure to conclude a WCA when claiming on IBESA or on UC then there should not be as great a problem with any delay in completing the WCA process ....largely because basic assessment phase payment will continue, presumably, for as long as it takes (which might actually be a good outcome in some borderline LCW/LCWRA cases) AND any SG component or LCWRA Element should be backdated to week 13 if LCWRA is eventually found to apply (despite what has been said earlier in this thread).

Where I have the issue is that UNLESS a determination of LCWRA is found to apply by day 365 then my client is entitled to NOTHING/NIL/NADA on NSESA as I see it. ....that is simply because he is not entitled to NSESA unless he is in the SG after day 365….and there will be no determination that he is in the SG because there has been no WCA completed .....

This is not an isolated case methinks….many claimants will presumably have commenced NSESA within the 3 months prior to lockdown…so presumably are right now within around 3 months of reaching day 365 of their NSESA (ie imminently over the 3 months shortly coming up prior to March 2021). Many, like my client, will have had incomplete WCAs, or cancelled assessments with no decisions on LCWRA made at all…..and seemingly nothing planned to achieve this determination .

so for them it seems to be “all or nothing”????

I have looked at the possibility of a JR to “force” the DWP to make a decision on LCWRA before day 365 in these cases…but as I inferred in my last post I am not sure that a judge would see the delay in the WCA process itself as unreasonable because of the real constraints of the covid situation….although a judge might ultimately see making no determination at all as unreasonable or even unlawful???

Obviously, a determination of LCW does not require a WCA to be conducted per se (in any traditional sense) but can be determined through other evidence than a health assessment.

...just looking for views really

Elliot Kent
forum member

Shelter

Send message

Total Posts: 2333

Joined: 14 July 2014

Dan - yeah I think people have tried that argument. The way to structure it in terms of the regs is that the beginning of the assessment process is action by SSWP on her own initiative “with a view to supersession” per para 10, 18 or 29 of sch 1. You still need to establish that there is a change of circs and therefore that reg 23 rather than 26 is the appropriate supersession ground. I am not wholly convinced that a new WCA is action “with a view to supersession” because its supposed to be a neutral process.

Peter - in your case if there isn’t a WCA outcome by the end of the year, your client will not suffer any long term detriment. They will do the WCA eventually and it will be backdated to day 92 if the client has LCWRA. If they don’t have LCWRA, then no change.

You could try a pre-action letter if you wanted - they tend to focus minds. I think it is very unlikely that a substantive JR would actually succeed. JRs based on delay are very difficult in the best case, but you have the additional issues that (1) your client is complaining about a failure to assess whether a right exists and not the delivery of the right itself (2) your client will not experience detriment beyond a wait for payment because arrears will be due once the WCA is completed, there will not be e.g. any work-related requirements imposed once the year is up. Your client would appear capable of ‘weathering the storm’ at least in the sense that they have sufficient assets not to qualify for means tested benefits and (3) the delay is likely to be justified in terms of the response to Covid. See e.g. O & H v SSHD [2019] EWHC 148 (Admin) particularly at 74-89.

Peter Donohue
forum member

Salford Welfare Rights

Send message

Total Posts: 25

Joined: 11 November 2020

Hi - Many Thanks for your thoughts which echo my own in respect of the potential for a JR of this situation…..as you indicate the whole thing comes down to whether the delay is sufficiently justifiable in ALL the circs and/or whether the detriment created by it demands interference from the Court…...another factor is that any client in this position (including my own) will not, or not likely be financially eligible for Legal Aid to run a JR anyway….mmmm

Benny Fitzpatrick
forum member

Welfare Rights Officer, Southway Housing Trust, Manchester

Send message

Total Posts: 575

Joined: 2 June 2015

Is there not an ECHR Article 6 argument here, for a decision within a “reasonable” time?

Daphne
Administrator

rightsnet writer / editor

Send message

Total Posts: 3107

Joined: 14 March 2014

I put in an FOI request asking how many people were being held pending a face-to-face assessment both for PIP and ESA, new claims and reassessments,  the reasons for not carrying out a phon/paper assessment, and whether the provider had sought further medical evidence.

DWP response -

With regard to your questions, I can confirm that the Department for Work and Pensions does not hold the specific information requested.

Andrew Dutton
forum member

Welfare rights service - Derbyshire County Council

Send message

Total Posts: 1784

Joined: 12 October 2012

The current policy of ‘wait until the problem goes away’ is not going well, especially given the latest tier-jerking manoeuvres.

We have a claimant whose primary language is BSL, the phone is no use at all. DWP/CHDA propose to do….nothing.

This could go on for months.

And of course people are still having debts recovered from their benefits, which doesn’t help. A new suspension of debt recovery should be put in place.

vickyn
forum member

Caseworker, Gwynedd Citizens Advice

Send message

Total Posts: 9

Joined: 9 November 2017

Hi all

A similar but more complicated query from my client.  She made a joint UC claim in Jan 2020, submitted fit notes etc straight away.  Telephone assessment June 20, told she would have to have a face to face assessment.  She then separated from her partner and UC changed to a single claim.  Awarded LCWRA after recent telephone assessment but only backdated from 3 months after single claim. 

IS there any argument we could use to get it backdated to original joint claim. If they hadn’t separated she would still be waiting for a Face to face and that would have to be backdated when it happened.

Thanks

scarboroughcab
forum member

Welfare Benefits, Scarborough CAB

Send message

Total Posts: 26

Joined: 30 October 2013

Hi all,

I have a client on UC who put in for LCW in Oct 2020, telephone WCA in Nov, is now being told there isn’t enough evidence to make a decision so she will have to wait for a f2f WCA, whenever they recommence/work through the backlog.  I’ve read the earlier posts from people with clients in similar situations; there was some suggestion that a judicial review might not work as the delay wouldn’t be seen as unreasonable due to C19, but my client’s living costs are more than her standard UC entitlement, she was really counting on getting the LCWRA element in order to start breaking even financially, and can’t really afford to wait.  She doesn’t get PIP so there’s no prior decision on her health to refer the CHDA/DWP to; she can get evidence from her GP but supposedly CHDA should already have requested this.  Can my client ‘force’ the DWP to make a decision based on what they have, or is she just stuck with waiting for f2fs to reccommence?

Thanks in advance,

Harriet