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Forum Home  →  Discussion  →  Covid-19 issues  →  Thread

UC refuse to re-assess when condition deteriorates

Ant
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Welfare rights service - Lancashire County Council

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Hello, My client has LCW , cond has worsened but work coach advises that they will not reassess. We’re going to take this up but wonder if others have seen anything similar.
Here’s what she has been advised after asking if they can direct her to or supply the instruction not to send cases for re assessment and if she will be paid arrears. Note neither question has been answered. She has been asking to be re- assessed sine at least September 2021. 

“Hello C , thank you for your message re WCA, & your worsening condition. As previously advised the dept is not currently undertaking WCA reviews due to the ongoing pandemic. If you feel your condition has worsened and you have medical evidence to support this, you could try to call the Centre for Health and Disability Assessments to see what they advise. At this time, I am unable to refer your case for re-assessment. As you can imagine,  we have an unprecedented amount of work at the moment, across all depts, due to the ongoing pandemic. The telephone number for The Centre for Health and Disability Assessments (CHDA) is 08002888777. Please be aware that they are also extremely busy at the moment.”

[ Edited: 13 Jan 2022 at 03:01 pm by Ant ]
Daphne
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I’m going to send that up via stakeholders - they can’t refuse to carry out a supersession!

Paul_Treloar_AgeUK
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We had a similar case before Christmas whereby someone who had reached SPA was being refused another WCA on the basis that he’d previously been found not to have LCW back un 2012 and that decision still maintained. Unfortunately I don’t know how that one was resolved following our advice that this was nonsense. He was part of MAC hence the UC claim by the way.

Ant
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We raised this issue with the local partnership manager who has advised that they will carry out the supersession if our customer can provide evidence of the deterioration. Sounds more sensible, a bit like ESA and needing evidence of significant worsening…
We’ll be interested to see how DWP respond, thanks Daphne

CA Adviser
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We have a client who is obtaining medical evidence that she has LCWRA and has requested a supersession. She has had LCW on UC for at least 4-5 years and has not apparently undergone a reassessment in that time. In 2017 she had a life-changing stroke and is wheel-chair bound with a live in carer. She has reported this to her work coach at least three times, and asked for reassessment but no new WCA has ever been carried out.

Va1der
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Is there a definition of the ‘evidence’ the SoS requires to initiate a re-assessment?

Simply asking for a supersession or reporting a worsening condition might not be sufficient, but conversely if CA Adviser’s client rolled into the JCP (having presumably not been wheelchair bound before) that would provide visual evidence at least to suggest that a relevant change has occurred.

roecab
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We have had one recently when told to contact CHDA and CHDA said they can only take referrals from UC/DWP.

Had to go through the partnership manager, to get a referral made.

Va1der
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There was a discussion or FOI or some such about that a while ago, I think the conclusion was that CHDA simply doesn’t have the IT access to initiate assessments, it must come from DWP.

UB40
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If the Work Coach doesn’t know how to do it .......a claimant can generate the Refer for WCA To Do on the UC agents Build by completing the Health section under Change of Circs. on their UC account. Answer Yes to Question ” Do you have a disability, illness or ongoing health condition that you would like to tell us about” and again yes to the following question ” Does your condition restrict your ability to work or look for work” and then state that the condition will last longer than 28 days.
Claimant already has LCW or LCWRA
G1035 If a claimant in work has already been assessed as having LCW or LCWRA, whether for the
purposes of UC or ESA1, a further WCA may be carried out in order to consider again whether the
claimant has LCW or LCWRA
If already included, the LCWRA element continues to be included in the UC amount unless and until it is determined that the claimant does not have LCWRA.
1 ESA Regs, Parts 4 & 5; UC Regs, Part 5; 2 reg 41(2)(b)

Dan Manville
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If it were me I’d be filling out the sscs1 and digging out the caselaw that MR doesn’t apply unless the claimant is told it applies and appealing the refusal to supersede.

Va1der
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Would an appeal be effective here though?

I still wonder whether the claimants have supplied sufficient evidence to trigger the assessment process.

Even if they have, it doesn’t sound like DWP have made a decision to refuse to superseede, in which case the remedy is JR, no?

Subo
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I just had a case like this. He gets LCW which is being appealed. Waiting for hearting date. Meanwhile his mental health declined and his GP wrote a letter to the Jobcentre last November to tell them he is worse. He has asked several times to be reassessed.
This is his message to me about what the job coach told him…
Hi sue I sent universal credit a journal note asking if they had an update about being reassessed. They gave me a call about 16:40 today. Basically she had told me that my current claim is going through court which I already know and that they wouldn’t really be able to reassess me until they make a decision at court as it could go in my favour. She tried to tell me to send you my further evidence and to show that at court. I said they have all my evidence but the court can’t take any new evidence or changes into consideration after the date I applied which was in March. She said it can take a long time to go through court but is she correct about me not being able to be reassessed? The women I spoke to seems to “think” I have to wait for the outcome of this appeal and that can take a long time. She used the word “think” several times.”
This is my response..
No I don’t believe she is correct. I’ve copied the legislation below and highlighted in bold and red the parts that should apply to you..
Regulation 4 of the UC regs 2013 states…

When an assessment may be carried out
41.—(1) The Secretary of State may carry out an assessment under this Part where—
(a)it falls to be determined for the first time whether a claimant has limited capability for work or for work and work-related activity; or
(b)there has been a previous determination and the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition or whether that determination was made in ignorance of, or was based on a mistake as to, some material fact,
but subject to paragraphs (2) to (4).
(2) If the claimant has weekly earnings that are equal to or exceed the relevant threshold, the Secretary of State may not carry out an assessment under this Part unless—
(a)the claimant is entitled to attendance allowance, disability living allowance or personal independence payment; or
(b)the assessment is for the purposes of reviewing a previous determination that a claimant has limited capability for work or for work and work-related activity that was made on the basis of an assessment under this Part or under Part 4 or 5 of the ESA Regulations,
and, in a case where no assessment may be carried out by virtue of this paragraph, the claimant is to be treated as not having limited capability for work unless they are treated as having limited capability for work or for work and work-related activity by virtue of regulation 39(6) or 40(5).
(3) The relevant threshold for the purposes of paragraph (2) is the amount that a person would be paid at the hourly rate set out in regulation 11 of the National Minimum Wage Regulations 1999(1) for 16 hours a week.
(4) If it has previously been determined on the basis of an assessment under this Part or under Part 4 or 5 of the ESA Regulations that the claimant does not have limited capability for work, no further assessment is to be carried out unless there is evidence to suggest that—
(a)the determination was made in ignorance of, or was based on a mistake as to, some material fact; or
(b)there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition.

The way I read the regs is that if you have a change in circumstances in relation to your health, then this should be reassessed. Would they refuse to reassess if he had a car accident and broke both legs? The appeal is irrelevant because it’s about a decision made previously.
In this case the change in circumstances is that the mental health problems got much worse from at least November when the GP wrote the letter. Providing that letter is evidence that suggests the change in circumstances so that the criteria in paragraph 4 is met.

Anyone think differently???

 

Stainsby
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You are spot on. 

Far from being unable to re- assess, they MUST re- assess

If they refuse to re- assess they will effectively refusing an application for supersession

A refusal to supersede is automatically appealable (R(DLA) 1/03(Wood v. Secretary of State for Work and Pensions [2003] EWCA Civ 53)

There is no need for mandatory reconsideration just go straght to appeal. There will no doubt be some interlocutory hoops to jump through but its far from impossible.

Va1der
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So I think I confused myself a little on this one. I have two related cases at the moment - both had WCAs done years ago, where one ended up with LCW and the other was refused. Both were likely entitled to LCWRA back then, and more likely now after their conditions have worsened.

If I now understand this right, the one with LCW only has to report a CiC and this must be treated as a request for a supersession, whereas the evidence issue I was referring to above (41(4)) actually only applies to claimants who have had a decision refusing LCW(?)

Stainsby: Are you effectively going to rely on the tribunal to treat the (nonsensical) advice/comments from lower level DWP staff as a decision to refuse to carry out the supersession, and thereby allow an appeal to go ahead?
I was thinking JR was more appropriate looking at it as a failure/neglect to deal with the supersession at all or causing unjustifiable delays in dealing with it.

Stainsby
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You need something concrete to go on, not just “nonesensical” advice

JR is always the nuclear option of last resort

As it is UC we are talking about here I would make sure that the client put a journal entry in specifically stating that it should be determined that (s)he has LCWRA. (which is an application for supersession which if granted would increase entitlement)

If they then come back with a refusal which effectively says that they do not have LCWRA then go to appeal and attach the journal entries to the appeal

The work capability assessment may or may not be part of the decision making process (sch 9 could apply)

I once managed to find a decision maker who overturned a fit for work determination and replaced it with LCWRA once the evidence was produced.  He did this without a WCA and determined on his own volition that ESA REg 35 applied.

There is still too much of the tail wagging the dog in decision making.  It seems that many DM’s are afraid to upset the WCA providers by making their own decisions even when there is compelling alternative evidence

UB40
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Just a thought on the last post….when the claimant makes the fore mentioned Journal entry, rather than choosing the radio button ” A message for my Work Coach ” choose ” A Change ” and it will bypass the Jobcentre and go to a UC Case Manager who tend to be better trained on Benefits than Work Coaches ( tongue not in cheek!)

TJL
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I have a   similar case they were refusing to re-aa
asess but eventually did so when claimant   provider   pointers via journal they may well be very busy .....

The ones which worry me are thoose who are unrepresented and accept what   is aid to them as gospel….