Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

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

WCA - delays and lost / late UC50 - file closed by CHDA

Macmillan Welfare Benefits
forum member

Macmillan welfare benefits team - Citizens Advice Leicestershire

Send message

Total Posts: 3

Joined: 6 September 2019

Good afternoon,

First time post on here and I am looking for your experience and advice.

Bit of background….

I am helping a client who has a cancer diagnosis (brain tumour). She is a young single parent.

In February 2020 we had our first contact with this client. She had been claiming UC since October, but had never been referred for a WCA (despite declaring cancer). When we met in February we helped her send UC a fit note and start the WCA process.  As she was having chemotherapy it should have been LCWRA automatically.

Unfortunately the Client made no further contact with us until this month so we assumed all had been sorted, but this is not the case.

UC are claiming the UC50 was never returned (it was, Client had her consultant fill out cancer treatment page and returned it). Cl was only informed when she queried that she hadn’t heard anything about the WCA. So 6 months after first providing her fit note, UC said the process had to start again. On 17th August our client was sent out another UC50. However, she did not receive this, and when she got the reminder letter she went on her journal and told UC she had not received it.

On 16th September (so one day before the one month deadline) a UC work coach put a note on her Journal to say he was sending her out another form by first class post, and she should return this asap.

So here’s the questions I have:

On 24th September the Centre for Health and Disability Assessments (CHDA) informed our client that they had closed her case as her form was not returned in time. I have spoken to the CHDA, and I am being told that it is NOT POSSIBLE for the CHDA to extend a deadline, and when they close file that is that, even if the UC50 is received they just ‘send this back to UC’ and don’t do anything with it (so one questions why the work coach sent out another UC50 the day before the deadline if this is correct!). So, is this everyone’s experience? The ADM section G1131 says the DM can allow a late return of the questionnaire with ‘good reason’. But if CHDA close the referral, and cannot physically reopen it,how will a DM ever get the opportunity to make a decision on the late return of a form? what can the DM actually do even if they accept good reason?

It seems unlike old ESA decisions, in UC if the WCA deadline passes and the form is not returned, there is no ‘decision’ sent to the Client or put on the journal, the claim just plods along (presumably in non-Covid times she would be more hassled for work searching and this would trigger a conversation earlier)

So we are at a stage now where the work coach has sent another WCA referral and our client is being sent ANOTHER UC50 (now her third) to try and get her WCA done.

It is utterly mad and infuriating that someone who has cancer, who claimed UC and declared it, is 12 months into a claim without a WCA being completed, and I am hitting a lot of ‘computer says no’ type of replies and can’t get my head around how this fits into the ADM guidance.

Any experience on this? Or just generally your thoughts would be appreciated.

 

Va1der
forum member

Welfare Support Worker - Community Renewal Edinburgh

Send message

Total Posts: 304

Joined: 7 May 2019

Unless UC have made a decision to say your client isn’t entitled to LCWRA I don’t see any barriers to the WCA process going ahead and the element to be backdated fully.

If it turns out they have made such a decision your client can appeal that decision. I’d still advise to go ahead with the current WCA.
You might be able to ask for the appeal to be expedited, based on unreasonable delays caused by DWP failing to send a decision notice, and further grounds if her cancer is severe or terminal.

It would be worth pursuing for the relevant period to start from when she notified UC of the cancer, rather than from when you helped her submit a fit note.

EDIT: On your question re CHDA - if DWP have in their possession a completed UC50 from your client I don’t see any reason why DWP can’t instruct CHDA to either reopen the current engagement, or open a new one to the same effect.

[ Edited: 29 Sep 2020 at 10:44 am by Va1der ]
Paul_Treloar_AgeUK
forum member

Information and advice resources - Age UK

Send message

Total Posts: 2300

Joined: 7 January 2016

Sound horrendous, given the problems and the health condition of your client, maybe contact your local partnership manager and ask them to escalate and get the situation resolved?

Dan Manville
forum member

Greater Manchester Law Centre

Send message

Total Posts: 95

Joined: 22 January 2020

Macmillan Welfare Benefits - 28 September 2020 04:24 PM

Good afternoon,

It is utterly mad and infuriating that someone who has cancer, who claimed UC and declared it, is 12 months into a claim without a WCA being completed, and I am hitting a lot of ‘computer says no’ type of replies and can’t get my head around how this fits into the ADM guidance.

Any experience on this? Or just generally your thoughts would be appreciated.

 

It is one of the fundamental problems in UC that the computer can say no irrespective of whether a decision maker has come to a determination. To my mind it is a systemic breach of art 6 ECHR.

Paul’s suggestion of approaching a partnership manager is a pragmatic one, but one that does not serve to address that fundamental failing. If it were me I’d be looking for opportunities to go down the JR route; where your client has not been notified of a decision there is quesitonable practiceand an unreasonable delay there that might justify it.

However Macmillan are an influential organisation; through lobbying they managed to secure the amendments that provide the exemption your client seeks to take advantage of. Maybe escalating this up through your structures; along with all the other problematic issue with the WCA process you doubtless come across, migth be a step toward getting these systemic problems addressed.

Va1der
forum member

Welfare Support Worker - Community Renewal Edinburgh

Send message

Total Posts: 304

Joined: 7 May 2019

Dan Manville - 30 September 2020 01:42 PM

It is one of the fundamental problems in UC that the computer can say no irrespective of whether a decision maker has come to a determination. To my mind it is a systemic breach of art 6 ECHR.

Personally, I don’t think the computer ever (or at least very rarely), actually says no. It’s a poorly designed system, but such a design would be purely idiotic from a programming perspective.

Most often it will be a case of the relevant button to press being in an illogical place, or because the operator is too daft or lazy to find it, or doesn’t have the necessary privileges. Many lower level staff don’t realise that the interface looks different for someone with other/higher privileges.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 487

Joined: 24 November 2017

I think the design/procedural fault here is that the legislation provides for certain classes of people to automatically be treated as having LCWRA - but only if the SoS is satisfied that they should be so treated.

These groups should not be required to have a WCA but procedurally DWP have decided that to confirm whether or not people people fall into a relevant group they will issue the UC50 which will be reviewed. If this process is not followed claimants don’t get a decision on their status.

In effect a WCA is not required but some process is still needed and the administratively easiest process is to essentially run the same/similar process which is described at ADM G3015.

Similarly the regular insistence on the provision of Fit Notes, whereas any medical letter confirming the cancer status of the claimant should be sufficient, is a frustration of the process.

Macmillan Welfare Benefits
forum member

Macmillan welfare benefits team - Citizens Advice Leicestershire

Send message

Total Posts: 3

Joined: 6 September 2019

Dan Manville - 30 September 2020 01:42 PM

It is one of the fundamental problems in UC that the computer can say no irrespective of whether a decision maker has come to a determination. To my mind it is a systemic breach of art 6 ECHR.

Paul’s suggestion of approaching a partnership manager is a pragmatic one, but one that does not serve to address that fundamental failing. If it were me I’d be looking for opportunities to go down the JR route; where your client has not been notified of a decision there is quesitonable practiceand an unreasonable delay there that might justify it.

However Macmillan are an influential organisation; through lobbying they managed to secure the amendments that provide the exemption your client seeks to take advantage of. Maybe escalating this up through your structures; along with all the other problematic issue with the WCA process you doubtless come across, migth be a step toward getting these systemic problems addressed.

Thank you for this Dan, Sorry for the delayed response I should have said on my original post that I only work part time!

It is not clear to me how a client is ever notified of a decision in a case like this - CHDA have closed her file this time, but she only knows because she called them, she has received nothing in writing. Her previous attempt at a WCA in February never had a decision when the form ‘wasn’t returned’ either. So no one has ever made a ‘decision’, even if that decision is that the form wasn’t returned so she isn’t entitled, even though the WCA process has begun (and therefore has to have ended?) twice. A fundamentally important step is missing out of the process - the part where a DM decides, and informs the claimant.

I have already sent two written complaints/queries by email to our relevant UC resolution team, but have had no reply to them at all.

I agree with your conclusion that there is some fundamental failing in the system here, and I am determined to see it through to a further conclusion than just getting this clients claim corrected. I will try and keep you all updated with any steps that get taken.

[ Edited: 1 Oct 2020 at 09:07 am by Macmillan Welfare Benefits ]
Macmillan Welfare Benefits
forum member

Macmillan welfare benefits team - Citizens Advice Leicestershire

Send message

Total Posts: 3

Joined: 6 September 2019

Ianb - 01 October 2020 08:39 AM

I think the design/procedural fault here is that the legislation provides for certain classes of people to automatically be treated as having LCWRA - but only if the SoS is satisfied that they should be so treated.

These groups should not be required to have a WCA but procedurally DWP have decided that to confirm whether or not people people fall into a relevant group they will issue the UC50 which will be reviewed. If this process is not followed claimants don’t get a decision on their status.

In effect a WCA is not required but some process is still needed and the administratively easiest process is to essentially run the same/similar process which is described at ADM G3015.

Similarly the regular insistence on the provision of Fit Notes, whereas any medical letter confirming the cancer status of the claimant should be sufficient, is a frustration of the process.

This is what is so frustrating - the process is for administrations sake only. The legislation has been written so she is automatically entitled due to cancer treatment, but there is no way for that to be processed. So she has been failed, as the system has lost her paperwork. When this client first claimed, she was not asked for a fit note, so she didn’t provide one, so the WCA never began . They knew she had cancer and she has obviously not been subjected to any harsh conditionality, so some easements have been applied, but not officially through any WCA. Only when we got involved did the WCA process begin.

And then, when her form was (supposedly) not returned, she doesn’t get the benefit of an administrative process, whereby she is informed of the ‘decision’ that she didn’t return her form - simply nothing happens.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 487

Joined: 24 November 2017

My point was that although we talk about people being automatically entitled that is subject to the condition that the SoS is satisfied that they should. DWP have therefore got to go through some kind of review process. However they have made it unnecessarily complicated when in most cases it is fairly obvious whether or not someone falls into a qualifying group.

Although she didn’t Provide a Fit Note do you know if your client provided any evidence of her cancer and treatment? http://data.parliament.uk/DepositedPapers/Files/DEP2019-0980/78._Medical_Evidence_including_Fit_notes_v5.0.pdf

If any evidence was provided then DWP guidance says there should be Day 1 WCA referral http://data.parliament.uk/DepositedPapers/Files/DEP2019-0980/132._Treated_as_having_limited_capability_for_work.pdf. (Although of course we have already established that claimants in these groups are not required to have. WCA!)

Universal Credit - a benefit designed by Lewis Carroll in conversation with Kafka.

[ Edited: 1 Oct 2020 at 10:39 am by Ianb ]
bristol_1
forum member

WRAMAS Bristol City Council

Send message

Total Posts: 137

Joined: 7 September 2015

Hello
My client is having chemo for lymphoma and this treatment started on 12/08. She only submitted a sicknote to UC in assessment period 11/09-10/10 after she was referred to us and we provided advice. I can see that for special rules clients the entitlement to LCWRA starts immediately but as she is not SR, it appears that she still serves the assessment phase.

Could my client backdate the start of the relevant period before LCWRA can be included, if she can evidence that the chemotherapy started earlier? Her treatment started in AP 11/08-10/09 but Regulation 28 appears to suggest that the relevant period only starts when the claimant provides the relevant evidence, as opposed to when the period of incapacity/actual treatment starts. I am sure she could get a backdated sicknote and she might have previous from the GP as she took time off work from earlier in the summer.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 487

Joined: 24 November 2017

As you say Regulation 28 says the relevant period only starts when the claimant reports the health condition (supported by evidence) as opposed to when the period of incapacity/actual treatment starts. Therefore a backdated Fit Note doesn’t help if the condition was not reported.