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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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Welfare Benefits Team - Phoenix & Norcas

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Just wondered whether the DWP would have to have more substantial grounds in which to apply late for record of proceedings compared to an individual client laid up in bed subject to a postal strike an unable to leave their home due to antartic weather conditions outside!

Jane H
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Greenwich Welfare Rights Service

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Hello - I have followed this thread and well done for winning that tribunal. I can see that there is scope here for us all to encourage people in this situation to try for the extra payment. However, in practice I am sure we are all in the same situation with limited advice resources and very limited tribunal representation options. It seems to me that several of you are well enough on top of this to create a submission that could cover this from all angles and that we could all give to claimants in this situation to use. I hope I can encourage one of you to do that? My understanding then is that we just need to get the claimants to challenge the initial decision awarding only basic rate? All of this I think could be done over the telephone with claimants who are able to do the easy paperwork side of things, or fairly smoothly through front-line services if a standard submission is available. What do others think of this as a possible approach to some take-up around this?

Mendip
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Question to the original poster -

1,
In the case of someone who has undergone a medical but is waiting for a Jobcentre determination :

I can see how the wording of 4(2)(a) suggests that they will be caught by 4(2) and have to wait until the jobcentres determination before they can get WRAC.

2,

In the case of someone who has not yet been examined, nor has a determination been made :

As I understand it, your contention is that since they have not yet been assessed at a medical then
4(2)(a) does not apply to them, because 4(2)(a) only applies when there has ‘not yet been a determination…the claimant having been assessed’

You go on to say that becuase of this they will not be caught by 4(2) and the assesment phase will end after week 13 and they will get WRAC from then.

3,
However,

Surely it is the case that someone who has had neither an assessment or determination will still be caught by 4(2) because 4(2)(b) will still apply to them?. ( even if 4(2)(a) doesn’t)

4(2)(b) will apply because there has been no determination under regs 20/25/26/29/33 ( either with or without a medical)

Please could you advise on this point, thanks

J.Mckendrick
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Points 1 & 2 are correct. In your point 3 - reg 4(2)(b) also does not apply to my client as he/she is treated as having limited capability for work under Reg 30 (not those regs mentioned in 4(2)(b) ie 20,25, 26,29 or 33(2) ) ie the production of a sick note as per the Medical Evidence regs. JM

Mendip
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Thanks for clarifying,

I agree that the client will have been ‘treated as having LCW’ under reg 30, but I can’t see the relevance of reg 30 in relation to reg 4(2):

The way I read it is that, for the purpose of reg 4, it is only when it has been determined that a person ‘is treated as having LCW’ under 20/25/26/29/33 that they can escape the effect of 4(2),

so, 30 doesn’t count because it’s not mentioned in 4(2)(b), isn’t this right?

J.Mckendrick
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Yes you are absolutely right in that Sec 30 does’nt count in 4(2)(b) (that’s great) so therefore 4(2)(b) IS NOT ENGAGED and therefore you fall back to 4(1) ie 13 weeks.

The importance of Reg 30 (ie deeming the client to have limited capability for work and NOT limited capability for work related activity) is also important in satisfying sec. 4(5)(b) of the Welfare Reform Act 2007 ie the qualifying conditions for payment of the WRAC from the outset.

Mendip
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what I meant is that 30 not being inlcuded in 4(2)(b) is a problem for our chap. our chap hasn’t been treated as having LCW in accordance with 20/25/26/29/33 ( I assume) , regardless of the fact that he has under 30,

so it is true to say that : at the end of the 13 week period, it has not yet been determined whether he has LCW as a result of being treated as having LCW under 20/25/26/29/33, and that therefore the assessment phase will end when the LCW determination is made,

J.Mckendrick
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Your client’s problem seems to have a different set of facts to that of my client. What I gather about your example (correct me if I’m wrong) is that eg your client is TREATED as having limited capability for work eg under reg 25 ie he/she has entered a residential detox programme. Under 4(2)(b) the actual assessment phase seems to finish when the DM has actual determined (ie made a decision) that he/she has limited capability for work whenever this may be!!! If this determination is made within the 13 weeks then the WRAC will be paid after week 13. If the determination has not been made after week 13 then the DM’s failure to make such a determination I believe would be open to complaint or judicial review proceedings perhaps but it looks like the DWP could in fact drag out the determination indefinately and therefore deprive the client of the WRAC.

Mendip
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My client has been in the assessment phase about 6 months, he is treated as having LCW under reg 30, but not 20/25/26/29/33. He hasn’t been examined and the JC have not yet made a determination.

I’d like to get him WRAC if I can, but I am unable to interpret reg 4 in such a way as to conclude that he is entitled to it.

that’s why I’m interested in knowing how you interpret reg4, I can see you point regarding 4(2)(a), but cannot see how to get past reg 4(2)(b)

J.Mckendrick
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You get passed 4(2)(b) because it simply doesn’t apply as your client is deemed to have LCFW under Reg30 so you fall back to 4(1). Can I suggest you therefore apply to the DWP then requesting payment of the WRAC after week 13.

Mendip
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Hmm.. not convinced yet, sorry
but will ponder over weekend,

thanks for your help

Ros
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hi tony -

the forum inner workings don’t support underlining HTML i’m afraid to say.

as you’ve shown in your post, it will allow italics (<i></i>). it’s also happy with bold (<b></b>) if you’d like further emphasis.

cheers ros

Gareth Morgan
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Ros

Any way to put up charts etc?

Mendip
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What I am struggling to comprehend are the words   ‘as a result of’  in para 2(b)

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…....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)

My understanding of this is that the LCW determination that 4(2) concerns itself with under subpara(b) is ‘as a result’ of being treated as having LCW under reg 20 etc, and in which case, if no such determination has been made then the assessment phase will continue.

However, I think that other people who have contributed to this thread may understand 4(2)(b) to mean that although there may be an assessment that the claimant has been ‘treated as having LCW’ under reg 20 etc, but that a determination of ‘LCW’ has not yet been made.

However, IF this were the case, would not the wording of 2(b) run along simillar lines to 2(a)?, and state something like :

’ the claimant having been assessed in accordance with 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work)’

- feedback very welcome

J.Mckendrick
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If your client is treated as having limited capability for work under Reg 30 (production of a sick note) then don’t worry yourself about 4(2)(b) because this section just doesn’t come into the equasion. JM