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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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Bryan R
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Folkestone Welfare Union

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Having used John’s argument recently and at many other FtT’s Judge Bano has erred

The fact that Mr James argrees with John in Para 5 is significant and like Tony has said I think there is quite a lot more mileage in Reg 4.

Tom H
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I see the amendment regs highlighted in rightsnet news section yesterday have now amended Reg 4 to put beyond doubt that the assessment phase ends when the LCW determination is made.  So the position is now that if you are assessed within 13 weeks or treated as having LCW within that time then the assessment phase will end at the end of 13 weeks.  Most people treated as having LCW will receive a decision to that effect within this time so they will not be penalised.  However, that means the assessment phase will not end for all those claimants still awaiting their medicals at the end of 13 weeks.

Tony, “having been assessed” is either the whole assessment process, ie from sick note, ESA50 until the assessment (as per post 18), or it is just the assessment itself (as per your last post).  I suppose the effect of the UT judgment is such that “having been assessed” may as well have been referring to the whole process.  In that sense, yes, the judgment mirrors (very loosely mind:) ) that view.

Given yesterday’s changes this thread now appears to have only historical value.

[ Edited: 10 Oct 2013 at 10:13 am by Tom H ]
benefitsadviser
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Sunderland West Advice Project

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I have clients who have waited 9-10 months for their WCA due to delays/incompetence from Atos. So you guys are saying these clients will now miss out as they have scrapped the 13 week rule? Luvverly.

Does this only apply to new claims, or to existing claims? Sorry if the answer if obvious, i dont have access to the regs, being a lowly first tier skint advice project!

I shall pass the hat round later.

Tom H
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They haven’t scrapped the rule that allows arrears of the component to be paid from wk 14 if you win your tribunal.  Eg, if a LCW determination is eventually made at wk 48 and it finds you do not have LCW, you appeal and win at tribunal, Reg 7(38) D&A in effect treats the LCW determination made at wk48 “as if” it had been made at wk14. 

The amendments regs are in force from 29/10/13.

[ Edited: 10 Oct 2013 at 11:12 am by Tom H ]
benefitsadviser
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Thanks tom, thought that would be a tad unfair and unjust. Having said that we are talking about the DWP and welfare reform here….....

Now - wheres me hat?

Ros
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J.Mckendrick
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Welfare Benefits Team - Phoenix & Norcas

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Re Tom’s input at 10.01am - you still have the problem where the client’s health significantly improves let’s say at week 47 in your example and is then found fit for work or at week 47 finds suitable employment prior to the ATOS medical - this person will never have any chance of receiving the WRAC even if they were critically ill from week 1 to 47. The new regs have indeed put a stop on the old Reg 4 argument.

Tom H
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We’ve discussed this point a few times in this thread.  I supported your argument because the law as passed by Parliament should be respected.  We put our MPs there.  No one votes for judges, except the old boys club when promoting them up the judicial hierarchy.  If a law states “have” it shouldn’t be for a judge to interpret it as meaning “have not”.  If the law produces absurd consequences it’s up to Parliament to change it.  The UT in recent cases appears to have lost sight of that principle.  The judgment in the “conversion letter” case is another example.

In the example you quote of the person improving or starting work at week 47, the law still provides a re-dress.  When he signs off ESA he is perfectly entitled under the law to have a decision on his capability for work from wk14 - 47.  Obviously, he’s lost the opportunity of an Atos medic seeing him when he was unwell (the cynic in me wonders whether that’s actually an advantage).  But he still has an ESA50 and sicknotes to rely on.  There may be little point in sending him for a medical after wk47 (though each case should be decided on its own merits), but a decision is still necessary.  If that finds him fit for work then it would be appealable in the normal way and if he won he could be paid a component from wk14-47.  I’d accept that many claimants might not realise that they have this right which is another matter.  The point is that the law does provide a redress.

J.Mckendrick
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Re CE 1467 2013-01, any opinions would be appreciated. I’ll put a later entry in regards why I still think the decision is wrong for several reasons. JM