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

Employment & Support Allowance - Payment of Work Related Activity Component

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J.Mckendrick
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I have just won at the First Tier Tribunal in Norwich on the 15th March 2012 with regards a decision about ESA that may have consequences on a national level. I argued that applicants who have not had an ATOS medical assessment within the 13 week assessment period are entitled to the work related activity component (“WRAC”) from the end of week 13 up until a Decision Maker finally finds the applicant fit for work (if this being the case) as a result of finally attending an ATOS medical. The conditions for payment of the WRAC are in Section 4(5) of the Welfare Reform Act 2007. Firstly my client had not been deemed to have limited capability for work related activity under Reg 30 ESA Regs as he merely supplied a GP’s sick note in order to claim ESA.The assessment phase is described in Reg 4(1)&(2) of the ESA Regs. The DWP argued the assessment phase continues indefinately (past 13 weeks) until an ATOS medical is carried out and a decision is made. I argued Reg 4(1) needed to be followed (13 weeks only) as reg. 4(2) was not engaged as my client had not attended an ATOS medical within the 13 weeks and was deemed to have limited capability for work under Reg 30 ESA, therefore 4(2)(a)&(b) were not engaged! The Tribunal found in my favour and instructed the DWP to make the WRAC payment from week 13 onwards even though my client had not attended an ATOS medical. Quite simply the DWP cannot keep clients waiting month after month for an ATOS medical and therefore be financialy penalized through no fault of their own. Obviously we await the posibility that the Sec of State will wish to appeal this decision.

J.Mckendrick

starkey
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Excellent result colleague! Like you said now we await the possible SOS decision to appeal. If this does stand, then there must be a vast amount of claimaints out there that are due back-dated benefits..

1964
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Nice one! Will be very interested to see what happens next. I shall definitely be using your argument.

Stevegale
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Very well done. It’s not acceptable that people who are sick are kept waiting for idefinite periods and I hope the decsion stands.

Stevegale
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What was the actual ‘decsion’ appealed against J.Mckendrick? Did you submit a supersession request sometime after week 13?

J.Mckendrick
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I treated this as a straight forward appeal as the DWP maintained that the assessment phase continued indefinitely until an ATOS medical is carried out and the applicant is found fit for work if this being the case. The Tribunal Judge agreed with my interpretation of the ESA Regs and the Welfare Reform Act. In other words applicants must have a medical within 13 weeks from application of the ESA otherwise the work related activity component wil be paid.

Nickd
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A great result! I’ve challenged this at FTT on several occasions but not with the same degree of success that you have.  I wouldn’t be surprised if the DWP do challenge the outcome, in which case I can only hope you go on and get your determination confirmed by the UT.  In some ways, it’s probably better if it is does go to the UT (so long as they uphold) as it then becomes a much needed reference point for others FTT’s to follow.  Either way, well done for pushing the point - it would be really interesting to know how it goes.

J.Mckendrick
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This arguement only concerns clients who have not attended an ATOS medical within the 13 week assessment phase and then wait several weeks/months after the 13th week of claim up until attending the ATOS medical. The work related activity component is then payable from week 13 of their claim up until the medical assessment. If the client scores 15 points then the WRAC continues, if the client is found fit for work at the medical then their entire ESA claim stops unless it is appealed. If appealed from this date they are not entitled to the WRAC but just the £67-50 up until a Tribunal hearing as a decision has now been made regards their fitness for work.
JM

Jon (CHDCA)
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This is interesting, but our timescales for hearings are usually much longer than for assessments.

As I understand this argument, there would be no overpayment if the WCA was subsequently failed, is that correct? Because from week 13 up to an assessment actually being carried out, the claimant qualified for the work component via reg 30. Although if the work component is being paid, then the amount of it which is received after assessment and up to the actual decision may be overpaid, I suppose? Is it clear in law when the date of assessment really is?

Sorry for being slow, but I’m still unclear on how to actually get this argument in front of a judge. Exactly which decision is being appealed?

J.Mckendrick
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The decision actually appealed was that the DWP refused to pay the work related activity component (“WRAC”) after week 13 as the client had not attended an ATOS medical within the said 13 week assessment period. Payment of the WRAC is found in Section 4(5) of the Welfare Reform Act 2007. The assessment phase is found at Reg 4(1)&(2) of the ESA Regs themselves. Reg 4(1) states that the assessment phase stops after week 13 subject to Reg 4(2), however   4(2) does not apply (to my client) as he had not attended an ATOS medical within the 13 week assessment period and therefore still awaiting a Decision Maker’s determination. The client was deemed to have limited capability for work via Reg 30 ESA regs ie the mere production of a sick note as per the Medical Evidence Regulations. If the ATOS medical had of been carried out within the 13 week period then the assessment phase would go over the 13 week period (Reg 4(2)(a)) awaiting a determination and no WRAC would be payable unless the determination found the client unfit for work. NB In this case the WRAC would be payable after the date of the determination whenever this may be. I believe that this is the correct interpretation of the ESA Regs (together with the Tribunal Judge) as it pressurises the DWP to have the client attend an ATOS medical as quickly as possible and not to have the client wait months to be examined and therefore be without the WRAC for this excess period of time. Again this decision may be appealed by the DWP up to the Upper Tribunal.

Peter Turville
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Sorry - I still can’t see what decision was appealed against. Presumably the DWP did not issue a written decision at or around week 13 saying ‘we will continue to pay you the assessment phase rate until we arrrange a WCA’.

What did the tribunal accept as the decision which allowed it to have jurisdiction? Was it the original decision to award ESA at assessment phase rate (as a late appeal) or did they accept that there had been a later decision incorporating a determination regarding the application of the regs. (ie we don’t have to pay wrac pending a wca after wk 13) even though there was no written decision to that effect?

J.Mckendrick
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I initially appealed the standard ESA letter sent from the DWP advising the client that he/she would recieve the assessment phase amount (£67-50) up until attending a medical assessment, requesting the WRAC be paid from the outset of the claim. The DWP sent me a submission stating that the WRAC is only paid at the end of the assessment phase if the client is found unfit for work - the assessment phase running after the 13 week phase up until the medical and determination whenever this may be quoting Sec 4(5) Welfare Reform Act 2007 and Reg 4(1)&(2) ESA Regs 2008. I then sent in an ammended/supplementary Tribunal submission stating that (after reading the DWP submission) the client was entitled to the WRAC from week 13 as he/she had not attended a medical within the 13 weeks and that the client was entitled to the WRAC (in the client’s case) up until he/she signed off ESA and started work.
JM

David Holcombe
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I’ve got to agree that I think the determination by the DWP is necessary to avoid Reg 4(2) from biting - not every WCA will necessarily involve an ATOS medical (Regulation 23 only states that a claimant may be called for a medical), nor will the exemptions as to being treated as having LCfW apply in every case, which otherwise would open up something of a lacuna within the Regulations.

With Reg 4(2)(a), you’ve got the question as to whether the claimant has been assessed, rather than the claimant being “treated” as having LCfW under Reg 30. Regulation 30 itself states that someone is treated as having LCfW until it has been determined whether or not there is LCfW.

Reg 4(2)(b) does not reference Reg 30 at all, but addresses whether somebody is treated as having LCfW under Regs 20, 25, 26, 29, or 33.

J.Mckendrick
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Dear Tom,
Many thanks for your input, but can I attempt to answer your points in order as I believe the situation to be.
i)  Reg 4(2)(a) - the claimant having been assessed in accordance with a limited capability for work assessment. Reg 2-(1) Interpretation states the limited capability for work assessment is indeed the ATOS medical as per Reg 19(2) and Schedule 2. The word assessment is different to that of a determination.
ii)  Reg 38(1) is only concerned finding someone having limited capability for work related activity. My client was deemed to have limited capability for work only as per Reg 30 and Medical Evidences Regs.
iii)  Reg 4(2) which extends the 13 week assessment phase does apply ie to people who have actually attended the ATOS medical within the 13 week assessment period and who now await the DWP determination that may be made just over the 13 week period (or may be not and have the client wait many weeks more)! My client did not have an ATOS medical within 13 weeks so it did not apply to him so we fall back to 4(1).
iv)  People in the first category ie 4(1) are either the lucky people who have had their ATOS medical within the 13 weeks and been found unfit for work (if this being the case) also within the 13 week assessment phase OR those who have not attended an ATOS medical within the 13 weeks and still await such a n assessment with a later determination/decision to follow.
v)  Regards your point 1 & 2 where the answer is ‘no’ – 4(2)(a) & (b) is therefore not engaged so you fall back to 4(1). Again re your point 3, the claimant is deemed to have limited capability for work as per Reg 30.
Again I’m no Law Lord but this is my interpretation of things. Has anyone else got any views!

David Holcombe
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J.Mckendrick - 28 March 2012 08:35 PM

i)  Reg 4(2)(a) - the claimant having been assessed in accordance with a limited capability for work assessment. Reg 2-(1) Interpretation states the limited capability for work assessment is indeed the ATOS medical as per Reg 19(2) and Schedule 2. The word assessment is different to that of a determination.

With the greatest of respect, Jon, I don’t think that Reg 19(2) states that an assessment of LCW is the ATOS medical:

The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

Schedule 2 doesn’t even refer to it. As I said earlier, Reg 23 is the relevant provision, and it only states that a claimant may be required to attend - this isn’t referenced by Reg2(1) at all.

J.Mckendrick
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I cannot see how 19(2) can be more clearer than interpreting it as the ATOS medical…

19(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

SCHEDULE 2
1. Mobilising unaided by another person with or without a stick, manual wheelchair or other aid if such aid can reasonably be used.    1   )    Cannot either: (i) Mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion;

PS How’s Irene,Egg and jane1