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

WCA for nsESA and UC

WR Adviser
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Welfare rights worker - Community Law Service, Northampton

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I am confused!  I have a client who was on nsESA and UC in 2021 - he is still on UC.  On 10/09/2021 he failed the ESA WCA.  I now have the appeal papers.  In the bundle, it states “using the evidence from that [ESA] assessment, a UC decision was made on 10/09/2021 that the appellant did not have LCW.  The appellant has not appealed the UC decision”. 

So, my confusion is:
1. if we win the ESA appeal, is it of no benefit to my client as the UC WCA decision of the same date has not been challenged and therefore the decision stands?
2. Am I best to ask for a late MR of the UC decision and then ultimately get an appeal online?
3. Why is it necessary for a UC decision on WCA also to be made? This just causes utter confusion for claimants (and me it would seem!).

Thank you - all comments and thoughts gratefully received!

Elliot Kent
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I wouldn’t worry too much about it.

ESA and UC are different benefits and each requires independent decision making. The effect of reg 40(1)(a)(ii) UC is that if the claimant is found to have LCWRA on his ESA WCA, then that is determinative for the purposes of UC also. However in your case, the client was found not to have LCW and there is no equivalent rule which says that the claimant automatically doesn’t have LCW for UC purposes, so it theoretically requires its own consideration.

It is open to you to lodge an appeal against the UC decision and have both appeals heard together. I don’t see that it is necessary to do so though. If you win your appeal then the UC decision would doubtless be revised in order to align with the effective ESA decision.

Charles
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Elliot Kent - 12 May 2022 03:14 PM

If you win your appeal then the UC decision would doubtless be revised in order to align with the effective ESA decision.

What revision power would they use?

I first thought it could be done under Reg 11(2) of the D&A Regs, but now I’m not so sure, due to the wording in subpara. (c)(ii) which suggests that the subsequent decision has to be on a “claim”. However, the example in the ADM A3113 does apply Reg 11(2) in such a case.

Elliot Kent
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It’s a fair question. It could be ‘any time’ revision under reg 5 D&A provided it is requested within 13 months of the DWP decision, revision under reg 11(2) (which I agree requires a slight fudge although I doubt anyone would complain), revision under reg 12 D&A or supersession based on a change of circumstances under reg 23 & sch 1, para 31 D&A.

I would think though that it is unlikely to attract a great deal of attention as it seems fairly straightforward that consistent WCA decisions between ESA and UC are necessary for the two benefits to be administered in something approaching a logical fashion.

WR Adviser
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Thanks to you both for your thoughts on this.  I think I am going to lodge a late MR request against the UC decision just to be sure as I am within 13 months.  It does seem like a waste of time mind you!