Employment & Support Allowance - Payment of Work Related Activity Component

FAO Tony/Nevip & co. Firstly to those interested this argument will be heard at the UT on 2/8/13. Secondly with regards Reg 6 ESA Regs 2008 (as mentioned in 4(1))...

6.  Where the period for which the claimant is entitled to an employment and support allowance commences and the claimant has made and is pursuing an appeal against a decision which embodies a determination that that claimant does not have limited capability for work, the assessment phase in relation to that claimant ends when the appeal is determined by an appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(72).

Does this suggest/prove that the WRAC is payable after week 13 up until a determination is made saying the client is fit for work and after this point in time the reg states that the applicant will then be reduced to the assessment phase money up until a Tribunal hearing which will decide one of two things ie i) The applicant is fit as per DWP decision and therefore not entitled to ESA from that time onwards nor entitled to the back date of the WRAC, or ii) The Tribunal find that the applicant was unfit at the time of the DWP determination and then has a back date of the WRAC to the date of the determination and for the immediate future. Comments please.

apropos of nothing, i just thought i’d mention that this is officially the most popular rightsnet thread and has currently had 163 replies and 13704 views.

Tony - Is Reg 6 of the ESA regs 2008 abolished and if so where does it say this - 147(a) seems to concern new applications with new a diagnosis or worsening condition after a determination of fit for work was made. Was the existence of Reg 6 there to lower those who failed their medical to put on assessment phase only.

Many thanks for the update but still very interesting that they have got rid of the old REG 6 because I believe it added weight to the Reg 4(1) argument - but as you say all very confusing!

Tony/others - Upon further reading is 147-(2) suggesting that the SoS cannot him/herself make an actual DETERMINATION of fitness for work under Reg 19 ie as a result of an ATOS medical and that the actual DETERMINATION itself can only be made by a Tribunal upon appeal. If this is the case then 147(2) is far more favourable than the old Reg 6 as the reg 4(1) argument would allow payment of the WRAC from week 13 right up to the date of the Tribunal. Therefore if the applicant was determined to be fit on the day of the hearing then they would keep the WRAC from week 13 up to this date! Again any thoughts.

147A.—(1) This regulation applies where a claimant has made and is pursuing an appeal
against a decision of the Secretary of State that embodies a determination that the claimant
does not have limited capability for work.
(2) Subject to paragraph (3), where this regulation applies, a determination of limited
capability for work by the Secretary of State under regulation 19 shall not be made until the
appeal is determined by the First-tier Tribunal

JM,

I agree with Tony that Reg 147A is not really relevant to your argument for the reasons he gives.  Reg 6 isn’t that relevant either.  Before 28/6/10, if you failed the WCA and wanted to be paid ESA whilst waiting for your tribunal you had to make a new claim for ESA.  All Reg 6 did was ensure that you stayed in the assessment phase for the whole of that wait.  Now Reg 6 is gone, Reg 147A ensures that you effectively remain in the assessment phase until your tribunal unless, eg, your condition worsens.

Your argument has never disputed that the person goes back onto the assessment rate once they fail their ATOS medical.  Instead, it’s concerned with getting the claimant the WRAG for any period between week 14 and the date of that medical, which could be several months.  Given Regs 6 and 147A only applied after the medical had taken place, neither is relevant.

The weakness with your argument in my view is that its only beneficiaries are those who subsequently lose their ESA tribunals.  Such claimants benefit under your argument by being able to keep the WRAG for the period between week 14 and the date of medical when, strictly speaking, they weren’t entitled to it (ie, they subsequently lost their tribunals).  They should be paid it, you’d argue, as a kind of compensation for the delay in receiving a medical.  But it’s not clear what they’ve actually lost by not having their medical by week13.  After all, we accept that they do not have LCW (ie they subsequently lose their tribunals), so the best outcome for them had they actually had their medicals within 13 weeks would have been to appeal or claim JSA.  In either case, they would have remained on the same amount of money as the assessment rate.  So they’ve lost nothing by remaining on the assessment rate whilst waiting for a delayed medical.

Those who win their tribunals get the WRAG or support component backdated anyway to week 14 (though you still seem to doubt this).  Of course, I accept that contemporaneous payment of the component is better than a later lump sum for those in hardship.

The strength of your argument is that Reg 4 is clear.  It is settled legal principle that where a provision is clear, judges are unable to interpret it purposively, eg unable to be influenced by arguments about who its beneficiaries are. 

As we’ve said previously, “having been assessed” as it appears in Reg 4 suggests that the assessment of the person’s LCW has concluded and all that’s awaited is the DM’s determination (official confirmation) of the result.  If that’s correct, then Reg 4 is very clear.  By the end of the week 13 they still await their medical, so they haven’t been assessed, so the assessment phase ends for them under Reg 4(1). There’s still a risk that the UT will find that argument so absurd (ie, that your assessment phase ends precisely because you have not been assessed) that it’ll find some ambiguity in Reg 4, enough to intervene and give Reg 4 the meaning which common sense would appear to demand.  Good luck all the same.  I hope you got your jurisdiction issue sorted out.

FAO TOM H - Firstly the WRAC is payable after the end of week 13 and up to the date of determination and not the medical which could have been some time before the negative determination itself. Secondly the argument does help out many people eg a claimant receives medical treatment say 9 months after the ESA claim or their health significantly improves very quickly after a new prescription drug is brought out again let’s say 9 months after their claim. Client then goes to an ATOS medical and is examined how they are that day and not 9 months ago so therefore would not probably get the WRAC for any period as they would then be found fit for work. Secondly what about the applicant who some 9 months after their claim discovers there is in fact a job they can carry out and signs off ESA or the applicant some 9 months later becomes a carer etc and again signs off ESA - The DWP are not going to invite these people back for an ATOS medical and therefore will never have had the chance of receiving the WRAC after week 13 due to a lengthy wait for their assessment.

SUCCESS!!

Thanks J Mckendrick et al, my client has today received a text stating his backdated WRAC is being paid into his bank (this is payment from wk 13 to the date of the decision. The claimant was by that time fit for work so has been on JSA since the date of the decision).

Sorry should have said this was following success at FTT using the Reg 4 argument.  My client did not dispute that he did not meet the criteria for ESA at the time of the decision (wk 42) hence has been on JSA since then BUT as per Reg 4 (1) he should have been paid WRAC from wk 13.  He is therefore getting WRAC from wk 13 - wk 42 (the date it was decided he did not meet the criteria for ESA).

Yes, sorry, to the date of determination which in reality will, at most, be a few weeks after the medical, not months.

And yes there are exceptional cases like the ones you mention (although I have to say that even those claimants, ie the one who gets better or signs off the sick before the WCA, could ask a tribunal to award ESA upto the period they got better or signed off.  The law provides for that.  I accept, however, that such claimants would need to appeal to get that opportunity and, in reality, in both scenarios they probably would not think of appealing). In theory, a DM should consider whether the person had LCW prior to the person signing off and, certainly, prior to their getting better (and apportioning entitlement to a component accordingly) without the claimant having to specifically ask for that.  But again in practice we know that’s very unlikely to happen.

However, I was thinking of the bulk of the beneficiaries of your argument who would undoubtedly be those who are ultimately found not to have LCW but who nevertheless gain for many months by receiving the WRAG.  They certainly outnumber the types of people in the scenarios you outline (in fact, to be honest, and it sounds a bit anti-claimant, but I cannot recall a single claimant in the recent past who has signed off to start a job, though I’ve had one who became a carer.  There are quite a few, I’ll give you that, who, eg, have a painkiller injection which relieves the symptoms temporarily, say, for a few weeks, until the pain returns and in whose cases your argument would help).

Is the prospect of more people receiving the WRAG than otherwise would a price worth paying in order to protect those in the scenarios you outline?  It arguably is, but the success of your argument is still likely to come down to whether the UT regard Reg 4 as clear and unambiguous, in which case DWP arguments about the consequences of your argument being absurd, inconvenient or anomalous are completely irrelevant.  However, if the UT detect some ambiguity, perhaps in the phrase “having been assessed” then, yes I agree, that your above scenarios could then be deployed to argue that even a purposive construction of Reg 4 should favour your interpretation of it.

GSmart,

I’m guessing he didn’t get better just before wk42.  In which case he’s the type of claimant who is, arguably, the price worth paying to protect JM’s examples.

Hi tony

No probs re 147A.  The few weeks was referring to the gap between the medical and the subsequent WCA determination which I’m hoping, even in Canterbury, is a few weeks only.  I accepted in post 170 that the gap between week 14 and the medical/determination could be several months which is probably, at very least, most advisers experience but it seems particularly bad in your area.

I note what you say about hindsight (in fact, I thought about that whilst I was writing that post) but I came to the conclusion that it didn’t matter because, as stated in post 170, it was difficult to see what the claimant (notwithstanding the benefit of hindsight) had actually lost by being forced to wait.  The examples JM provided subsequently are obviously relevant and that’s why I suggested those people who are unjustifiably paid the WRAC (ie because they do not have LCW at any time throughout their claims and who haven’t lost out financially at all for having to wait for a medical) are a price worth paying for protecting claimants such as the ones who sign off the sick because of the wait for a medical and choose CA/IS instead, despite the latter being much lower in the number than the former. 

I think if he gets to 100,000 hits, JM should be made a Sir of Rightsnet.  If this thread were tennis, we’d be in the fifth and it would be 37-36 with JM just having broken the Dept:) .

“I think if he gets to 100,000 hits, JM should be made a Sir of Rightsnet.”

Might I suggest Lord Cholmondeley McKendrick of Rightsnet cum Mincing!

In recognition of the week that he gets all (including the undeserving) the WRAC: Lord Cholmondeley McKendrick of Rightsnet cum Mincing the 14th.

Tom H - 09 July 2013 02:10 PM

GSmart,

I’m guessing he didn’t get better just before wk42.  In which case he’s the type of claimant who is, arguably, the price worth paying to protect JM’s examples.

Sorry to take so long getting back to you.  He had an accident and his injury was temporary and had been improving bit by bit.  His GP provided medical certificates every couple of weeks until the last sick note which did in fact indicate significant improvement (possibly what prompted a decision).  Lets not forget he made a valid claim and had a right to have that claim decided within the assessment period. 

There have been comments about nothing being lost anyway if the delayed decision is not favourable as the amount of income would have been the same.  This is not always the case, for instance cold weather payments are not made and someone in receipt of DLA transferring from JSA to ESA immediately suffers a large reduction in income due to losing the disability premium that was paid with JSA.

Anyway I am happy to report that my client has now received payment of WRAC from the end of wk 13 up to the date of the decision week 42 or 43 I can’t quite remember.