Periods of work whilst awaiting LCW assessment

Hi guys, can you please help? My client started the WCA assessment when not in work. She completed a questionnaire but then worked for few months due to financial pressures. She earned more than 16 x NMW per week. She was not in receipt of PIP at the time.

She failed WCA, but the decision does not mention her work - only refutes her health limitations.

How would the temporary work period impact on client’s WCA process? Because I am not sure if it is worth challenging the refusal if client would not have been able to be assessed as LCW to start with.

You don’t have to worry about her ability to be assessed after the fact. Any appeal would be against the decision - which concerns her ability to work, not her ability to be assessed.

But she was working at the time of decision…
She was earning more than the relevant threshold.
Reg 41(2)?

This (as so often) shows up the problems with real-world application of reg 41(2). It doesn’t deal with situations where work stops/starts.

The reg doesn’t say a determination cannot be made, it says an assessment may not be carried out. So I suppose it depends when exactly your client was working. If the assessment (the gathering of the evidence including the UC50 & maybe a medical examination) happened when she wasn’t working, maybe a determination was possible.

In any case there’s a tactical issue here. She WAS assessed, so if you don’t challenge the decision, you would then face a problem getting a new WCA unless reg 41(4) allows it. You could try arguing that the previous determination should be ignored as it should never have been made (or the assessment not carried out), but would that work?

I think it’s not worth risking. I would challenge the decision, & if it doesn’t work for the reasons you’re worried about (because an assessment should never have been carried out), then that ought to allow the possibility of a new WCA because that previous assessment should be as if it never happened (though I bet it will still be difficult).

Thanks Will, that clarification is very helpful.

Sorry Jo, I had intended to reply earlier.

I’ve had a couple of these cases, and it seemed to me that the general issue was less around when the client actually worked, and more on when DWP received and acted on that information. Seems there’s an admin issue in their systems where there is some conflict/lag between the WCA system and the ‘eligibility to have a WCA’ system. (by system I mean systemically randomly knotted bundle of yarn)

In both cases I was able to proceed to appeal and the issue never came up. I suppose the SoS would have to rely on one of their powers to change their decisions (official error?) and in going to appeal maybe they just focus on the LCW decision as the more obvious route.