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Retrospective medical evidence R(IS) 8/93 for LCW/LCWRA
I’d also consider reg 2 of the Social Security (Medical Evidence) Regs…
applying (1A), it was unreasonable for client to provide fit notes at the time, as she’d been told she didn’t need to…
Arguably the evidence she’d already provided (saying she had xxxx condition) was continuous ‘other’ evidence of LCW.
Alternatively she has satisfied (1) with the fit note for the past period, as you’re already arguing, which accords with the case law.
I note the case law relates to a much older version of the Med Ev Regs & I’ll admit I haven’t gone into that in any detail…nor have I looked at the wording of the relevant bits of the IS Regs back then (to compare to reg 28 UC Regs). Ideally would look at both those.
But anyway, I’d also say worth a complaint asking for compensation if LCWRA element not backdated to 2018 (from the AP after whatever the relevant period should have been).
I’d also consider reg 2 of the Social Security (Medical Evidence) Regs…
applying (1A), it was unreasonable for client to provide fit notes at the time, as she’d been told she didn’t need to…Arguably the evidence she’d already provided (saying she had xxxx condition) was continuous ‘other’ evidence of LCW.
Alternatively she has satisfied (1) with the fit note for the past period, as you’re already arguing, which accords with the case law.
I note the case law relates to a much older version of the Med Ev Regs & I’ll admit I haven’t gone into that in any detail…nor have I looked at the wording of the relevant bits of the IS Regs back then (to compare to reg 28 UC Regs). Ideally would look at both those.
But anyway, I’d also say worth a complaint asking for compensation if LCWRA element not backdated to 2018 (from the AP after whatever the relevant period should have been).
Thanks Will wanted to explore the questions that may come up in the hearing re R(IS) 8/93, and you’ve given me something to think about .
Because of the tangible official error and tacit acceptance of official error we used Kerr v Department for Social development for Northern Ireland [reported as R1/04(SF)] (paragraphs 62 - 63).
Looked at the older version of the med evid regs and IS legislation too.
So far they have paid out £100 as a consolatory payment. But will explore if LCWRA not backdated.
Loving the use of Kerr!
That’s something I should remember to mention in some ‘missing elements’ cases I have.
£100 clearly derisory in the circumstances, so worth going back to that if the appeal fails, but I’m cautiously hopeful & would want to keep going with the legal challenge as far as possible, subject to the client agreeing. Be great if you can post back when you get a result.
Loving the use of Kerr!
That’s something I should remember to mention in some ‘missing elements’ cases I have.
£100 clearly derisory in the circumstances, so worth going back to that if the appeal fails, but I’m cautiously hopeful & would want to keep going with the legal challenge as far as possible, subject to the client agreeing. Be great if you can post back when you get a result.
Wouldn’t want to be without Kerr!!!!!!!!!
Client is very determined to proceed.
Will do, we’ve shared progress through out with CPAG EWS and had some very helpful observations too.
Client declared she had ‘**************’ and was being treated by a ‘neurologist’ when she made UC claim.
DWP shadow journal recorded ‘does not require any fit notes currently as has young child’ under 12 months i.e. advised that fit notes were not necessary.
2.5 years later advised to hand in fit notes (another tortuous implausible saga in it’s self).
For sake of argument client found to have LCWRA from 2022 - 2020. GP provided a retrospective fit note to cover period.2020 - 2018. Client appealing the period 2020 - 2018 arguing LCWRA should be from the date she claimed UC.
DWP arguing erm anyway…..........oh and also ‘The onus is upon the claimant to provide the relevant evidence on time, despite being misinformed of the benefit system and its processes’ . In other words client should have handed in fit notes at start of claim.
Any thoughts on following case law please?
We are arguing on behalf of client R(IS) 8/93 i.e. retrospective medical evidence i.e. fit note perfectly fine. Have used before as alternative evidence to fit notes in the past and as retrospective evidence years ago for ‘legacy’ / ‘heritage’ benefits.
‘Social Security Commissioner Mitchell held in R(IS) 8/93 (pages 32 – 39) held that ‘So far as the question of the sufficiency of retrospective evidence to satisfy the terms of paragraph 12(1)(b) of Schedule 2 and paragraph 5 of Schedule 1 to the Income Support (General) Regulations is concerned I do not consider that the wording of those paragraphs necessarily precludes the use of retrospective evidence. I note the doubt expressed in Mesher, CPAG’s Income Related Benefits: The Legislation, 1992, pages 161 and 175.
However the relevant provision for qualification for a disability premium requires evidence of present incapacity for work coupled with evidence that such incapacity has been present for the past 28 weeks, not necessarily that there has been past evidence of such previous incapacity.
I therefore consider that in a case such as the present retrospective evidence of incapacity in support of a claim for one of the specified benefits and covering the requisite qualifying period could be accepted.
However the acceptance of such retrospective evidence could not in my view be allowed to prejudice the proviso in paragraph 5 of Schedule 1 to the Income Support (General) Regulations that an adjudication officer has not determined that the person is not incapable of work. It would seem to follow therefore that if evidence of past incapacity is only presented with the claim made (by way of review) for disability premium, or in the course of adjudication upon it, a decision on entitlement to the premium could not be required from the adjudication officer or made by the appellate authorities without the adjudication officer having the opportunity to make an adverse determination on incapacity for work. The adjudication officer has had that opportunity in the present case (paragraph 16).
Have a similarish case and wondering if you have an outcome for this case yet?
Client declared she had ‘**************’ and was being treated by a ‘neurologist’ when she made UC claim.
DWP shadow journal recorded ‘does not require any fit notes currently as has young child’ under 12 months i.e. advised that fit notes were not necessary.
2.5 years later advised to hand in fit notes (another tortuous implausible saga in it’s self).
For sake of argument client found to have LCWRA from 2022 - 2020. GP provided a retrospective fit note to cover period.2020 - 2018. Client appealing the period 2020 - 2018 arguing LCWRA should be from the date she claimed UC.
DWP arguing erm anyway…..........oh and also ‘The onus is upon the claimant to provide the relevant evidence on time, despite being misinformed of the benefit system and its processes’ . In other words client should have handed in fit notes at start of claim.
Any thoughts on following case law please?
We are arguing on behalf of client R(IS) 8/93 i.e. retrospective medical evidence i.e. fit note perfectly fine. Have used before as alternative evidence to fit notes in the past and as retrospective evidence years ago for ‘legacy’ / ‘heritage’ benefits.
‘Social Security Commissioner Mitchell held in R(IS) 8/93 (pages 32 – 39) held that ‘So far as the question of the sufficiency of retrospective evidence to satisfy the terms of paragraph 12(1)(b) of Schedule 2 and paragraph 5 of Schedule 1 to the Income Support (General) Regulations is concerned I do not consider that the wording of those paragraphs necessarily precludes the use of retrospective evidence. I note the doubt expressed in Mesher, CPAG’s Income Related Benefits: The Legislation, 1992, pages 161 and 175.
However the relevant provision for qualification for a disability premium requires evidence of present incapacity for work coupled with evidence that such incapacity has been present for the past 28 weeks, not necessarily that there has been past evidence of such previous incapacity.
I therefore consider that in a case such as the present retrospective evidence of incapacity in support of a claim for one of the specified benefits and covering the requisite qualifying period could be accepted.
However the acceptance of such retrospective evidence could not in my view be allowed to prejudice the proviso in paragraph 5 of Schedule 1 to the Income Support (General) Regulations that an adjudication officer has not determined that the person is not incapable of work. It would seem to follow therefore that if evidence of past incapacity is only presented with the claim made (by way of review) for disability premium, or in the course of adjudication upon it, a decision on entitlement to the premium could not be required from the adjudication officer or made by the appellate authorities without the adjudication officer having the opportunity to make an adverse determination on incapacity for work. The adjudication officer has had that opportunity in the present case (paragraph 16).
Have a similarish case and wondering if you have an outcome for this case yet?
Hearing is on the 23rd, I’ll let you know the outcome. We have another similarish case too, but awaiting a hearing date.
Have a similarish case and wondering if you have an outcome for this case yet? [/quote]
Hearing is on the 23rd, I’ll let you know the outcome. We have another similarish case too, but awaiting a hearing date.[/quote]
Thanks Andy, fingers crossed for a positive outcome.
Who knew that Commissioner Mitchell would be this influential this far down the line.
I’ve seen this situation a few times and simply relied on 2(1A) of the med ev regulations. It’s never let me down yet.
I also like arguing a PIP award is adequate medical evidence to trigger the clock to start ticking; JCP have revised on that basis a couple of times. I’ve never got it as far as a Tribunal.
I’ve seen this situation a few times and simply relied on 2(1A) of the med ev regulations. It’s never let me down yet.
I also like arguing a PIP award is adequate medical evidence to trigger the clock to start ticking; JCP have revised on that basis a couple of times. I’ve never got it as far as a Tribunal.
Interesting, thanks Dan.
Just in case people haven’t seen the following https://askcpag.org.uk/content/208636/uc-relevant-period
‘WHAT IS THE RELEVANT PERIOD?
The ‘relevant period’ rules are within under regulation 28 of the Universal Credit Regulations 2013 (the ‘UC Regs’). Regulation 28 (1) provides that an award of UC will not include the LCWRA element until the assessment period that follows the assessment period where the relevant period ends.
Specifically, regulation 28(2) provides that:
‘(2) The relevant period is the period of three months beginning with –
(a) if regulation 41(2) applies (claimant with monthly earnings equal to or above the relevant threshold) the date on which the award of universal credit commences or, if later, the date on which the claimant applies for the LCWRA element to be included in the award; or
(b) in any other case, the first day on which the claimant provides evidence of their having limited capability for work in accordance with the Medical Evidence Regulations.’
It is clear that the relevant period is a period of three months. However, it is when this relevant period begins that causes many a wrong decision. There are two possible starting points.
Firstly, if regulation 41(2) of the UC Regs applies (ie, where a claimant’s earnings are at her/his relevant earnings threshold and s/he is entitled to a disability benefit or a review of a previous assessment is being carried out), then the relevant period will begin on the date of the UC claim or, if later, the date the claimant ‘applies’ for LCWRA to be included within the award. (In practice, the ‘application’ for the LCWRA element will simply be when the claimant declares any health conditions within the UC account under the ‘Health’ section either at the point of claim or later as a change of circumstances.)
In all other cases, however, the relevant period will begin on the first day the claimant provides ‘evidence of limited capability for work’ (LCW) that is in accordance with Medical Evidence Regulations, meaning the Social Security (Medical Evidence) Regulations 1976’.
‘EVIDENCE’ OF LCW
The most common form of evidence of LCW is the ‘statement of fitness for work’, also known as a ‘fitness for work note’ or ‘fit note’. However, it is vital to remember, this is not the only form evidence that is acceptable (letters and health reports should also be accepted).1 In addition, self-certification for the first seven days of LCW is also acceptable evidence.2 DWP guidance (Advice for Decision Making (ADM) Chapter F5: ‘The LCWRA element’ )3 at paragraph F5031 and example 1 (regarding ‘Dom’) expressly states that the date a claimant first informs UC of ill health is the first day on which the claimant provides evidence of LCW for the purposes of determining when the relevant period will begin. Where, after self-certification, the ‘fit note’ is provided at a later date, the relevant period will begin on the first day of self-certification, resulting in the LCWRA element being included within the UC award from that earlier date.
Have a similarish case and wondering if you have an outcome for this case yet?
Hearing is on the 23rd, I’ll let you know the outcome. We have another similarish case too, but awaiting a hearing date.
Thanks Andy, fingers crossed for a positive outcome.
The short answer is ‘retrospective medical evidence’ is ok. See below for a longer response.
The Tribunal found our client’s statement / reference to her health condition should have ‘triggered a WCA’ back in 2018. Tribunal adjourned and made directions that the 2018 journal entry as ‘an application for consideration of LCW or LCWRA’ and the SOS is ‘required to make a decision’. Similarly, the SOS has to make clear to our client and us who will be dealing with it to make sure the paperwork reaches the ‘right person’.
Client with our help sort out an UC50 setting out client’s recollections of their ‘difficulties’ back in 2018 and submit ‘such med evidence they think is helpful.
The short answer is ‘retrospective medical evidence’ is ok. See below for a longer response.
The Tribunal found our client’s statement / reference to her health condition should have ‘triggered a WCA’ back in 2018. Tribunal adjourned and made directions that the 2018 journal entry as ‘an application for consideration of LCW or LCWRA’ and the SOS is ‘required to make a decision’. Similarly, the SOS has to make clear to our client and us who will be dealing with it to make sure the paperwork reaches the ‘right person’.
Client with our help sort out an UC50 setting out client’s recollections of their ‘difficulties’ back in 2018 and submit ‘such med evidence they think is helpful.[/quote]
Thanks for the update
The Tribunal found our client’s statement / reference to her health condition should have ‘triggered a WCA’ back in 2018. Tribunal adjourned and made directions that the 2018 journal entry as ‘an application for consideration of LCW or LCWRA’ and the SOS is ‘required to make a decision’. Similarly, the SOS has to make clear to our client and us who will be dealing with it to make sure the paperwork reaches the ‘right person’.
Client with our help sort out an UC50 setting out client’s recollections of their ‘difficulties’ back in 2018 and submit ‘such med evidence they think is helpful.
That’s an interesting solution, but the consequence of the Tribunal’s finding that the medical evidence regs were satisfied in 2018 is surely just that the LCWRA is applicable from three months after that date, as per reg 28, and there is no basis for any of these intermediate steps.
Perhaps you are taking the pragmatic view that you may as well go along with it and see what happens…
The Tribunal found our client’s statement / reference to her health condition should have ‘triggered a WCA’ back in 2018. Tribunal adjourned and made directions that the 2018 journal entry as ‘an application for consideration of LCW or LCWRA’ and the SOS is ‘required to make a decision’. Similarly, the SOS has to make clear to our client and us who will be dealing with it to make sure the paperwork reaches the ‘right person’.
Client with our help sort out an UC50 setting out client’s recollections of their ‘difficulties’ back in 2018 and submit ‘such med evidence they think is helpful.
That’s an interesting solution, but the consequence of the Tribunal’s finding that the medical evidence regs were satisfied in 2018 is surely just that the LCWRA is applicable from three months after that date, as per reg 28, and there is no basis for any of these intermediate steps.
Perhaps you are taking the pragmatic view that you may as well go along with it and see what happens…
That’s a fair point Elliot, wasn’t quite what I had envisaged either, but had been in the back of my mind that something like that may crop up. I’m open to any suggestions and advice regarding this, so feel free to weigh in.
The Judge advised that limited to a fit note stating just a diagnosis and without a medical panel member, she felt she couldn’t make a decision for the period 2018 - 2020 as regards to LCWRA.
Not sure if it pragmatism or resignation or what in all honesty. This case has been awful in terms of the lack of humanity / defensiveness at a DWP regional level towards our client. But depressingly consistent with other cases.