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

Effective date of Support Group element in ESA

WR Adviser
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Welfare rights worker - Community Law Service, Northampton

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I have a client who is on ESA and was in WRAG. In August 2019 the DWP started another WCA process and the client returned a completed ESA50. In November 2020 DWP decided he had LCWRA and paid SG component from the date of decision.  I have asked for MR arguing this was a supersession under reg 23 of UC etc (D&A) regs and that under Sched 1 para 10 this was a supersession started under S of S’s own initiative and so the effective date should be from when the action was first commenced (ie when the ESA50 was issued).  DWP are so far resisting this argument. Am I missing something or is there a better argument I could put forward?  Any thoughts or experiences about this would be most welcome. This client did not have a specific incident which created the change of circs, but his mental health has just gradually deteriorated over time.  Thanks

Elliot Kent
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Its an argument, although I doubt the DWP would accept it (not that this is a reason not to pursue it). I think there is a question mark over whether it is right to describe the sending of an ESA50 as action with a view to supersession. The argument may go down a little easier if it is framed as notification of a change of circumstances - in which case the effective date would either be the date of reporting or the date of change.

(By the by, I don’t know if this is old or new style ESA, but the 2013 regs would only cover new style. So if you are dealing with old style, you would want to convert the references to the 1999 D&A regs. Doesn’t change the substance).

WR Adviser
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Thanks very much Elliot.

AlexJ
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Trafford Welfare Rights

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I absolutely appreciate why you would want to argue this on behalf of your client and you obviously have to put his/her interests at the top of your agenda.

However, if I’ve understood correctly, would this line of argument not have the potential to set a rather dangerous precedent for claimants, if we envisage a scenario where the decision in question was instead to find the claimant fit for work? If the decision had been to find the claimant fit for work, following your line of argument, the DWP could potentially argue that the claimant has been overpaid some or all of their benefit (depending on the benefit), since the date that the supersession commenced. And of course, if the benefit in question was UC, all overpayments are recoverable, regardless of cause, and if the claimant had been in receipt of the LCWRA element of UC the DWP could argue that this part of their award has been overpaid and then recover it from the claimant.

Just a thought. I may be way off the mark here, if so, my apologies - I haven’t been through this in any detail or looked through the regs etc. due to time constraints, it was just something that sprang to mind whilst browsing on this forum over my lunch. 

Cheers

Alex

AlexJ
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Trafford Welfare Rights

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In reference to my post above, I’ve now actually taken the time to look up the relevant regs, and I can clearly see that the reg we’re talking about (para.10 of Schedule 1 of the UC etc. Decisions and Appeals Regs) specifically talks about the date of supersession where the superseding decision is advantageous to the claimant. So the issue I was worried about isn’t actually an issue at all, because a negative WCA decision clearly wouldn’t be advantageous. That’ll teach me to comment on things ‘off the top of my head’ without looking up the relevant regs. My apologies and best of luck with your argument.

Kind regards

Alex