Employment & Support Allowance - Payment of Work Related Activity Component

WB-room - 25 February 2013 03:43 PM

sorry to put a cat among the birdies but maybe reg 30[1] [2] applies here ,  in effect as long as the claimant provides sick notes he/she is treated as having lcw,

Is that the same Reg 30 JMckendrick mentioned (and dealt with) in post 1 of these 143 posts?

Indeed, the very same reg 30. but I respectfully suggest the issue was referred to rather than ‘dealt with’ in post number 1.    Reg 4 is clear, if the claimant has NOT ‘been assessed’ or does NOT come under regs 20,25,26,29,33, the assessment phase continues . the claimant in question had neither been assesed nor did he come under the above regs, so———the assessment phase contiues until one of those eventualites occurs. and reg 30 is what permits the claimant to be paid until that time, so arguably, preventing detriment to the claimant.

WB-room - 26 February 2013 09:35 AM

...Reg 4 is clear, if the claimant has NOT ‘been assessed’ or does NOT come under regs 20,25,26,29,33, the assessment phase continues…

Your point has been raised at various points in this thread.  JM would dispute your above interpretation.  His argument is that the assessment phase does NOT continue if, by the end of the 13 weeks, the person has not yet been assessed or does not come under Regs 20,25,26,29,33.  The very fact the LCW is derived from Reg 30 means the assessment phase ends after 13 weeks in accordance with Reg 4(1).  That’s the argument.

Whilst the argument is a reasonable one I think JM’s appeal doesn’t stand a chance unless he can present it as an implied appeal as discussed in earlier posts.

OK, ( though I rather think it will fail because it is a simple mis-interpretation of the regs )

Well it hasn’t failed so far with three (3) different First Tier Tribunal judges! JM

Followers of this thread might like to know that the Tribunal in Taunton rejected the reg 4 argument. The reasons are not entirely clear to me and I don’t want to pursue the point as my client was successful on other grounds. The Judge pointed out that the effect of reg 7 (38) (a) is to backdate a favourable decision to the end of the 13th week - the argument in the 101 post. The Tribunal decided that on the facts my client had LCW prior to her successful operation and place her in the support group.

The DWP have advised us all that where a client passes an ATOS medical and is found unfit for work after week 13 then the client will recieve the WRAC backdated to week 13 of their claim.

However what about the next scenario…. client fails an ATOS medical let’s say at week 20 and the decision notice is dated week 21. Client then appeals the decision and attends Tribunal in week 40 and is found unfit for work. Are clients having their WRAC backdated to week 13 or back to the date of decision ie week 21 in this case. The information we at Phoenix/Norcas have recieved today from the DWP is that the payment of the WRAC in an appeal case would only be backdated to the date of decision/disallowance. If so this is also incorrect and any examples/views on this would be appreciated.

Incidentally still awaiting Upper Tribunal (Judge Bano) decision in the Reg 4 arguement.

For those interested one of these successful First Tier decisions from last year was appealed by the DWP and resulted in Judge Tirrel at the Birmingham Tribunal Service sending back this particular decision to a newly formulated First Tier Tribunal to be heard again in the interest of justice. Today I attended this new First Tier Tribunal in Kings Lynn (with a different Judge) who again agreed with the original decision in that the WRAC is payable after week 13 etc etc. NB still waiting the outcome from the Upper Tribunal regards two (2) other such cases that the DWP have appealed. JM

Have you got a link to the UTT decision?

Still awaiting the decisions from the UT at present.

FAO Nevip/Tony & others - as today’s case was a result of a rehearing as directed by H.M Courts & Tribunal Service in Birmingham in relation to the S of S ‘s application for permission to appeal, can the S of S make a further appeal in this case or does this case form some kind of precedent as a result even though not confirmed by the UT!

Reg 4 (1) argument:

For those interested I have just been successful with this argument at FTT.  I would like to thank J McKendrick and everyone else on this forum, the information was really helpful.

Thanks for the mention - I’m glad it was useful.

Sorry to throw another spanner in this late on, but it looks to me that there’s a problem. The amount of ESA is primarily governed by section 2 of the Welfare Reform Act 2007. Section 2(3) Says that one of the conditions for payment of the WRAC is that the assessment phase has ended: plus such other conditions as may be prescribed. The reguations then add the other conditions that are prescribed.

Ok Just testing :) I’m sure I understood that the other day but somehow I went back to not grasping it as I keep reading 4(2) as extending it past 13 weeks, but of course that’s begging the question under discussion…