SOR - UC Regulation 28 - Medical Evidence

If it’s someone who already had LCW, wouldn’t the ‘relevant period’ have been when he first attained LCW?

The problem with reg 28 was that it was written in order to accommodate the idea that a claimant would undergo one ‘relevant period’ during which they would provide medical evidence of LCW (i.e. GP notes). They would then get an assessment as either LCW, LCWRA (or neither). The relevant period would be a single event in any period of LCW/LCWRA.

When the LCW element was gotten rid of, reg 28 was amended and left in a bit of a mess. However I don’t understand the amended reg 28 to be saying that somebody who already has an LCW assessment is required to provide fresh evidence under the medical evidence regs to support their application to be assessed as LCWRA. That would not make any sense, as the medical evidence only attests to the fact that they are (in the opinion of the GP) LCW. The fact that the claimant is LCW is already, by definition, an accepted fact. Your client must already have submitted the fit notes from the GP at some point in the past.

So I think that the error in this case is by referring to reg 28 at all. In my view it was a red herring and did not have any application in a case where we are looking at going from LCW to LCWRA.

Instead the relevant provisions were those from the Decisions and Appeals Regs. Specifically, what needed to be done was to identify the ground of supersession and the effective date of that supersession.

As to the ground of the supersession, it would have been open to the DM to use either reg 23 (change of circumstance) or reg 26 (the general power to supersede on new medical evidence in WCA/PIP cases). This seems to be a case which is very obviously based on a change of circumstances (viz. an entirely new condition) so reg 23 really seems more appropriate.

In a reg 23 case, the effective date of the supersession is determined by the application of part 3 of schedule 1 of the D&A regs. The important points are generally when the change happened and when it was reported. In this case the judge seems to be saying that he did not accept that your client’s phone call amounted to a reporting of the change - that may or may not be defensible on the evidence. However it does seem quite clear that your client’s submission of the UC50 (whether that was at the DWP’s instigation or your clients) amounted to the reporting of the change.

So in summary, it seems to me that the FtT erred in treating this as a first assessment to which reg 28 applied rather than seeking to apply the provisions relating to supersession. Had it done so correctly then, in the worst case, the decision would have gone into effect from the point of the submission of the UC50.

Elliot , thank you for the very comprehensive and informative response.  Very much appreciated.