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unfit for work decision ‘lapsed’?
Client is on UC and was found unfit for work but not WRA in Feb 2020, reassessment was supposed to have been after 18 months. However due to the pandemic no second medical went ahead. Recently she put a note on her journal querying when she would get an assessment date, only to be phoned by her work coach and told that she is now expected to look for work. When she said that her health was now worse than when they last assessed her and she had been waiting to be called for a new assessment she was just told it is too late to do anything about it now, and to send in sick notes and start the process all over again. (She does not seem to have contacted them prior to this to say she had got worse as she was just expecting to be assessed at some stage).
The UC helpline say there are notes on the case dated Feb 21 and Dec 21 stating ‘assessment not actioned’ but no clear note that an actual decision has been made that she is fit for work, and they seemed to think that the original decision could lapse as it was now over 18 months since they last decided she was unfit for work - I do realise the helpline are not the most reliable source of information though.
So far I have assisted cl to put a note on her journal to say that she is not happy that they are now treating her as fit for work and wants to challenge any decision by way of an MR and be reassessed asap as she is now worse, but as I say it is not clear there has been a decision she can MR, as such. Cl is unhappy to have to send in sick notes and wait even longer but the other issue is that had she been assessed back in Feb 21, she may well have been awarded the LCWRA element, or could have successfully challenged a decision refusing it, as she has severe mental health problems so potentially could have shown substantial risk of WRA, so she has potentially been losing out financially as well.
Has anyone else come across anything similar with an unfit for work decision apparently lapsing like that?
As far as I am aware this is not a decision that someone is fit for work, but a guide as to when they should be referred for another assessment - see re-referral scrutiny in the WCA handbook https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1039927/wca-handbook.pdf
she as not been found fit for work, no new decision has been made
I think it makes sense to treat this as two distinct issues.
Insofar as the first LCW decision goes, whilst it contained a recommendation that your client be re-assessed in 18 months, it is simply incorrect to say that it has now ‘lapsed’. LCW determinations (c.f. PIP awards) are not time limited - they just go into effect indefinitely until they are superseded. There is nothing to suggest that the LCW award has been superseded so it remains in effect. The work coach doesn’t appear to have any legal basis to require your client to submit fit notes or for asking them to look for work. This should be challenged e.g. by raising with partnership manager, complaints or even threat of JR.
The other issue is the failure to re-assess your client following her report of her condition worsening. This is a known issue and is being discussed on another thread (https://www.rightsnet.org.uk/forums/viewthread/17988/). It seems to be the case that the DWP are delaying or not conducting re-assessments where requested by the claimant connected with the general lack of capacity for health assessments at the moment.
Plainly a report of a worsening of circumstances is a request for supersession and needs to be resolved as such. Whilst there is no time limit to deal with the request as such, when the case eventually is re-assessed, the effective date of supersession ought to be when the change was reported. If the DWP are outright refusing to re-assess the case, then that could be challenged in the same ways as above or could be treated as a refusal to supersede which is in principle appealable.
It’s not only work coaches who misunderstand this. I have an ongoing case where ESA informed UC in the first AP that the claimant has LCWRA and there is a journal entry from UC saying she is therefore due the element. This was 3 years ago and it has never been paid. I’ve been met with mystification and obstruction and repeated comments from both work coaches and the service centre to the effect that she doesn’t have a health condition and that her LCWRA status “lapsed”.
It is (or should) now be at MR stage - used a payment statement as the decision to be reconsidered. No idea if it is actually being looked at as an MR and no-one is apparently able or willing to tell me, so it will be PAP letter time if we don’t get a decision soon.
It’s horrendous - I’ve been back through the whole journal and the client was attending the JC every week, applying for jobs, trying to work and at the same time posting increasingly confused and paranoid messages on the journal which should have made it obvious to anyone with a modicum of sense that her mental health was deteriorating dangerously.
We (as in the council) are now appointee so at least all that has stopped but I could have wept reading the journal.
I feel UC has got worse recently. We are fortunate to have good relationships on the whole with the JC managers and the partnership manager but the level of ignorance of the law and unwillingness to accept it applies to UC is frightening.
I feel UC has got worse recently. .. the level of ignorance of the law and unwillingness to accept it applies to UC is frightening.
Yes and yes.
An update to our case above. Finally been resolved after adding a health condition to the account, so as an administrative matter, not through the MR. Arrears of £12,000 due.