DWP refusing to carry out a WCA
Client had a WCA in 2020 and she was found fit for work. She did not appeal against DWP’s decision. Client has arthritis and anxiety. She feels that her health has deteriorated since her WCA.
She tried to do some work earlier this year but says that it did not work out due to her health conditions. She provided DWP with a one month fit note on 8 May. She provided them with a new one on 13 June which was for 3 months. They have told her that they will not carry out a new WCA because her new fit note does not show deterioration in her health condition. She has asked her GP for a new Fit Note but he has refused telling her that he has already provided her with one which shows that she is not fit for work. The GP has suggested that DWP could write directly to him – in my experience, this is not something that they would do.
Any suggestions on a way forward? She has no other health professionals she can turn to
Perhaps you could write to the GP to explain what the problem is. It must be really annoying as a GP to have the DWP disagreeing with you about whether a person can work, but if you can explain to the GP how the system works (or doesn’t) then it may persuade them to just put that little bit of extra information on the sick note.
The other thing you might look at is whether any treatment or medication has changed.
Ultimately I think the problem lies with the DWP - a sick note doesn’t usually refer back to a previous period of illness, so you wouldn’t expect it to be possible to work out whether there had been any change over time unless it was a different health condition. But changing the DWP’s mind about it might be more difficult than getting a GP to write something slightly different on a scrap of paper.
As for remedies, I don’t know whether refusing to start the WCA process is a decision - I’m sure somebody else will know. If it is then MR, if it is not then complain.
I think as a first step I will go with your suggestion to write to the GP as long as the client agrees and I will check the medication situation.
On the MR/right of appeal issue, I think there probably is a way to force a formal decision out of DWP.
Is the claimant seeking a substantive decision which alters the outcome of her UC entitlement? She isn’t working, so a work allowance won’t make any difference. But if she is assessed as having LCWRA, the rate of UC will increase. Therefore she is seeking a superseding decision to increase her UC by adding an LCWRA element. If the DWP refuses to make that decision on the basis that she has not reported a new or deteriorated condition and so they won’t even carry out a WCA, she has a right to MR/appeal following the Neil Wood v SSW&P principle. Her appeal would be against the refusal to supersede, and the grounds for appeal would be that she has met the criteria for a fresh WCA which would, she submits, result in her having LCWRA and thus an increased UC award after the relevant period.
I think any MR and appeal would have to be worded very carefully to emphasise that the appeal is against the adverse outcome to her UC entitlement, not the refusal to do a WCA in itself.
I cannot see anything in the Schedule to the D&A Regs that expressly excludes these cases from appeal[ Edited: 17 Sep 2021 at 11:57 am by HB Anorak ]
Thanks HBA. Essentially what she is looking for is the be accepted as having LCW and therefore not have to look for work at this time to continue receiving UC - LCWRA would be a bonus but not her main motivation here. Would your suggestions re MR/Appeal still apply?
I think the point is just that the MR has to say the client is seeking a supersession to get LCWRA which would increase the UC award. It doesn’t actually matter whether she gets LCWRA (or even whether she feels she ought to get it) - she is just trying to get a WCA, and hoping the outcome is at least LCW (and of course, now she’s with you she’ll be better placed to MR any decision she thinks is wrong).