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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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Ali L
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Terrence Higgins Trust, Glasgow

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I’m just popping in here to say that we regularly have people in certain areas waiting 5 or 6 months for a medical and subsequent decision.

I was speaking to a CAB worker from Shetland the other week who said that their record was someone waiting 50 weeks for a medical, and I think this was for a claim for contribution based ESA - if that happened now that person would only get 2 weeks of non means tested ESA if they were in the WRAG.

J.Mckendrick
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Welfare Benefits Team - Phoenix & Norcas

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The Social security and Child Support (Decisions and Appeals) Regs 1999 - Reg 11) Where, in relation to a DETERMINATION for any purpose…...that issue shall be DETERMINED by the Secretary of State.

Welfare Rights Bulletin 207: ESA decisions and appeals - “Also, as in incapacity for work for incapacity benefits, the official view of whether someone satifies the basic requirement of being too ill to work (ie of having ‘limited capability for work’) is initially the subject of a DETERMINATION - by the DECSION MAKER, not by a doctor.

ATOS Healthcare website - Atos Healthcare carries out the work capability assessment….

DWP website - A guide to ESA - the work capability assesment - The medical assesment should be applied to all claimants within the first 13 weeks of claiming ESA. It will assess, FOR THE PURPOSE OF DETERMINING ENTITLEMENT…....

reg 4(2)(a) relates to the claimant having been ASSESSED - the assessment phase will end when the limited capability for work DETERMINATION is made ie two (2) distinct requirements/tests! My client’s assessment phase finished at the end of week 13 (reg 4(1)) because he had been NOT issued a date to attend the ATOS medical within the 13 weeks - if he had then the assessment phase would have contniued after week 13 until the DETERMINATION is made - whenever that may be!

Paul Treloar
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I think I would agree with you Tony, it’s a beautifully simple argument essentially.

Reg 4(2)(a) clearly engages reg 19 as the overarching definition of what the LCW assessment is about, but regs 21 and 23 also contain requirements for the “determination” of LCW related to the ESA50 and the medical.

Therefore, the “assessment” in reg 4(2)(a) can contain any, or all, of these different requirements but unless the DM has:

(1) made a determination as to what these requirements are, and
(2) whether they have been properly gathered by the end of the 13 week period,

then the DM cannor assert that someone has properly been “assessed” as per the wording in reg 4(2)(a), and therefore reg 4(2)(a) cannot bite.

Which also conversely means that someone who has sent in all the forms and had a medical, and that information is all available to a DM by the end of 13 weeks, could indeed remain on assessment rate ESA until a decision is properly made.

J.Mckendrick
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FAO Tony,

The assessment phase ends at the end of week 13 if and only if the DWP have in fact gathered all the relevant information needed to make a determination as you have stated eg the findings of the ATOS medical assessment. This is the time frame that the Legislator has allowed the DWP in gathering the info needed in order to make their determination. If they fail to do this within 13 weeks then the client recieves the WRAC until found fit for work (if this being the case). The point is clients cannot be kept for months awaiting an ATOS medical and being declined the right to recieve the WRAC after week 13 because the DWP cannot get their act together and this not being the fault of the client! With reagrds your last paragraph, people treated as having limited capability for work eg Reg 30 ESA Regs - they are only treated as having limited capability for work up until a DM determins that they are fit for work as a result of an ATOS medical. Therefore it is in the DWP’s own interest to have the ATOS medicals as quickly as possible. NB my client did not have the oportunity to attend such an assessment within the 13 weeks and it is for this reason why the assessment phase finished at week 13 for my client for the purpose of payment of the WRAC (as confirmed and agreed by the First Tier Tribunal Judge).

FAO Head of Policy,

Yes you are correct in that if the DWP have gathered the necesary info in order to make a decsion within the 13 weeks (eg the results of an ATOS medical), then the DM can just sit back and make a determination after week 13 indefinately under 4(2)(a) but this is another arguement. In theory the info gathering could have been completed at week 12 day 6 and a decision made some time later NB any serious delay in making such a determination could be challenged by judicial review or applying for a specific performance order through the courts.

Tom H
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I think the success or otherwise of this argument will rest on the meaning of “having been assessed” in Reg 4(2)(a).

The heading in italics preceding section 8 of the WRA 2007 reads “Assessments relating to entitlement”.  Section 8 itself provides for regulations governing not only the limited capability for work assessment but also for obtaining “information or evidence” required to carry out that assessment.  The sick note, ESA50 and ESA medical represent such info/evidence.  Does that mean someone has started to be “assessed” under the limited capability for work assessment as soon as they are asked for a sick note?  I think the answer is probably yes.  After all, the ASSESSMENT phase starts from day one of entitlement which just so happens to be when most claimants are expected to provide sick notes from.

However, the words “having been assessed” in Reg 4(2)(a) in my view mean that the above assessment of limited capability for work has been completed by a DM, even if this in practice involves no more than the DM agreeing with the learned findings of the ATOS medical, which quite clearly, legally or otherwise, contains a limited capability for work assessment.

I think Reg 4(2)(a) should be construed as having equal parity with 4(2)(b).  The regulations referred to in the latter all involve the completion of a decision, eg finding that someone is treated as having LCW. 

And just because the assessment for limited capability for work has been completed doesn’t mean that the determination of LCW must follow immediately.  I recall last year DMs phoning customers who’d failed the LCW test asking if they had any further evidence before the DM formally made the “determination”.  The assessment and determination are distinct processes, the latter being the formal record of the former.

But I think JM is essentially right.  By the end of week 13 in his case, the client had not been “assessed” in the above sense, ie by a DM, although the information gathering part of the assessment process had started from day one.

I understand the DMG refers to a component (WRAC or support) not being payable even where someone is treated as having LCW under some of the provisions in 4(2)(b), eg Reg 20, until they are assessed as having LCW.  It seems for such people, the law would indeed allow the assessment phase to continue.  However, the reference to Reg 29 in Reg 4(2)(b) is surely erroneous as before Reg 29 can apply there must have been a determination that the person does not have LCW, in which case the assessment phase would end in accordance with Reg 4.

If JM’s argument is correct then even if someone loses their ESA appeal, they could ask the tribunal to award them the WRAC from week 14 to the date of their limited capability for work assessment.  Winning by appearing to lose as one Law Lord once said.

[ Edited: 30 Mar 2012 at 05:22 pm by Tom H ]
J.Mckendrick
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Thanks Tony re your previous post - yes technically they can sit on decsions for months. Again my initial arguement was all about my client not attending an ATOS medical in the 13 weeks so 4(2)(a) is not engaged. Forgetting all the exceptions in 4(2)(b) - this part again is not engaged with my client as he is deemed to have LCFW under Reg 30 (ie production of sick note) so you fall back to 4(1) ie the assessment phase ended after week 13 (for the purpose of payment of the WRAC as per the Welfare Reform Act) because the DWP failed to sort out an ATOS medical for my client within 13 weeks. Thank heavens it’s the weekend!

J.Mckendrick
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Just to update everyone - I have today spoken to the Tribunal Service and to a DWP Appeal Team member at Basildon who confirm that the Secretary of State will not be appealing the First Tier Tribunal decision of last month regards payment of the WRAC after week 13 pending the ATOS medical. We at Norcas will now be using the same arguement with our present clients in order that they too recieve the WRAC pending the ATOS medical.

Mendip
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Much as I would like to agree with JM’s argument , and get more cash for my clients, I can’t follow his interpretation

It seems clear to me that that LCW assessment is process involved in making a determination, and does not specifically refer to the medical - see 19(2),
it also seems clear that 4(2) is asking whether or not a determination has been made via (a) or (b), that (a) refers to a determination made via the LCW assessment ‘process’ as per reg19, , and if a determination hasn’t been made then the ‘assessment phase’ doesn’t end.

Jim

4.—(1) Subject to paragraph (2) and 1regulation 5., the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act.
(2)
If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet been determined whether the claimant has limited capability for work–
(a)
the claimant having been assessed in accordance with a limited capability for work assessment; or
(b)
as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work),
the assessment phase will end when the limited capability for work determination is made.


Determination of limited capability for work
19.—(1) For the purposes of Part 1 of the Act, whether a claimant’s capability for work is limited by the claimant’s physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.
(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

J.Mckendrick
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As per previous posts, re 4(2)(a) the limited capability for work ASSESSMENT has to be completed by the end of week 13 pending the DETERMINATION in order to allow the assessment phase to continuue after week 13. All I can say is the First Tier Tribunal Judge agreed with the interpretation and that the DWP have not appealed the decision. I am fully aware the decision is not binding however as the DWP have not appealed the decision could it be possible they have accepted the interpretation and were also unable to come up with a ‘point of law’ in order to attempt to appeal the decision!

J.Mckendrick
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CORRECTION -if the work capability assessment has not been completed within the 13 week assessment phase (pending DETERMINATION) then the assessment phase ends for the purpose of paying the WRAC - sorry but I was still half asleep when completing the previous post!

stevenm030
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sorry but i am struggling to follow this thread so can someone please clarify if i am on the right track with what i am thinking.

is the argument basically that if the assessment process hasnt started i.e. the esa50, medical etc then the wrag should be paid after 13 weeks regardless but if it has started then the client must wait for it to finish before the assessment phase ends?

J.Mckendrick
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Yes you are absolutely right fisrt time! If the Atos medical assessment has not taken place within the 13 week assessment period then the WRAC is payable from then on up until a determination is made that the client is fit for work if this being the case. Obviously if the client is found unfit for work at this point then the WRAC continues. You are also correct in realising that if the Atos medical has taken place within the 13 week assessment period then unfortuneately the DWP can drag the matter out as then the assessment period would finish when the determination is finally made whenever this may be.

stevenm030
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what if an esa50 only had been issued but no medical?

J.Mckendrick
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Then the WRAC is payable after week 13 - please look at previous post dated 28th March at 8.35pm.

J.Mckendrick
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Just to update anyone who may be interested, I have just been notified that the DWP have applied for the record of proceedings with regards the Tribunal hearing on 15/3/12 in this matter. The DWP’s request was made on the 19/4/12 ie 5 days out of time! The Tribunal Srvice have stated their late request will be decided by a Judge - Any comments please re their late application for the written reasons. JM