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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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SamW
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Hi JM

If you could email me a copy I’d be very grateful:

.(JavaScript must be enabled to view this email address)

Just to confirm how you got it to tribunal, did you submit a supercession request for the WRAC after the 13 week period was up and then appeal against the decision not to put the component into payment?

Am I right in thinking that where we have outstanding appeals against unfavourable medical assessments that have taken place more than 13 weeks after the date of claim, we could also submit that notwithstanding any findings by the tribunal regarding client’s actual LCW they should be treated as having had this from the 13th week up until the date of the medical?

Thanks S

J.Mckendrick
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On your first point I merely appealed (by way of GL24) to the DWP when client recieved confirmation that they would recieve the basic element after applying for ESA from the start. At this point I wrongly argued that the client should be paid the WRAC from the outset of their claim. As a result of recieving the DWP’s submission it was evident that the client’s claim for the WRAC should start on week 13 and not from the outset of the claim. As a result I sent in an amended Tribunal submission regards the week 13 arguement. On your second point the WRAC should be paid from week 13 up to the date when the determination is made (ie failing medical) and not the date of the medical - as attached sub.

J.Mckendrick
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FAO Sam & Tony - they are treated as having LCW from week 13 up until the date of the Decision Maker making a determination of fit for work which will be slightly later than the date of the medical itself which is more beneficial for the client ie the later the determination the more WRAC the client gets - JM

Tom H
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I’m beginning to have doubts about the merits of this argument. 

It’s not so much JM’s interpretation of Reg 4 ESA Regs, though on reflection it seems to offend language to say that the assessment phase ends when (in fact precisely because) the person hasn’t been assessed at a medical.  And I suspect the UT would take a purposive approach to Reg 4’s interpretation so that that kind of absurdity is avoided.

But even if JM is right about the assessment phase ending at the end of wk13 if there’s been no assessment (and I’m not saying he isn’t), the biggest obstacle would appear to be section 4(5) WRA which provides:

“(5)  The conditions of entitlement to the work-related activity component are–

(a)  that the assessment phase has ended,
(b)  that the claimant does not have limited capability for work-related activity…”     

So even if the assessment phase ends when JM says it does, that would only satisfy (a) above.  However, there has still not been, at that point, a determination of lcwra for the purposes of (b).  I queried this with JM in a separate thread and his view as I recall was that the very fact there has not been a determination of lcwra means the person does not have lcwra.  Therefore, they satsify (b).  I don’t think that’s necessarily correct.

I don’t think it necessarily follows from the fact that the assessment phase must end before a component can be awarded, that if the assessment phase does end then a component must then be awarded.

Even the main phase amounts do not seem to apply until the whole of section 4(5) is satisfied - see para 1(1) of Sch4 to the ESA Regs.  Satisfaction of 4(5)(a) alone is not enough.

It seems to turn then on whether a person is, at the end of the assessment phase, implicitly in the WRAG when there is not yet a determinatin of lcwra.  Obviously, for the clients’ sakes I hope JM is right.

ROBBO
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My colleague Mr John Birks, who is currently on sabbatical from his rightsnet commitments, felt that it would be interesting for this discussion group to cast its minds back to 2006 :-

http://www.dwp.gov.uk/docs/response-to-select-committee.pdf

More pertinently paragraph 8.  Did the DWP really get the point the committee were trying to make?

Committee response

8. The Committee welcomes the Government’s commitment to carry out the revised
Personal Capability Assessment within 12 weeks but is concerned about how often
this will be achieved in practice. Those who are not assessed within this period
should not suffer financially as a result. The Committee therefore recommends that
the Department establishes contingency measures for such an occurrence to ensure
that ill or disabled people are not financially penalised (paragraph 118).

DWP reply

20. The Department has undertaken to complete the revised PCA within three months of
the initial claim. Where it is not possible to complete the assessment within the three-month
period, main phase benefit entitlement, once established, will be backdated to
the end of this three-month fixed period to ensure that no entitlement is lost.

Tom H
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That’s interesting Robbo.  Pepper v Hart aside, I think that would seem to support the view that the WRAC is not payable at the end of wk13 where a medical assessment has not been carried out.  But it is paid in arrears from wk14 should the person subsequently be found to have LCW.  And that seems to be what the current system does.

J.Mckendrick
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FAO Tom - 4(5)(b) is satisfied as the applicant is deemed/treated as having limited capability for work as per Reg 30 ESA Regs ie the mere production of a sick note as per the Medical Evidences Regs ie no ATOS medical needed at this time.
The assessment phase ends after week 13 purely for the purposes of payment of the WRAC NB this does not mean that the applicant has escaped having to attend an ATOS medical in the future.
If someone is found unfit for work at week 3 of their claim, they recieve the WRAC at week 13. If someone is found unfit for work at week 7 they also recieve the WRAC at week 13 as week 13 is the end of the assesment period purely for the purposes of payment of the WRAC.
What happens to a client who is still awaiting an ATOS medical at lets say week 24, they then have some small medical treatment and one (1) week later they return to work. This client then will not attend an ATOS medical and will have no opportunity of recieving the WRAC backdated to week 13 if the previous posts are correct!

J.Mckendrick
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Another point is that let’s say the applicant’s ATOS medical is at week 20 and the determination itself is at week 21 which finds the applicant fit for work. The applicant appeals to Tribunal and some months down the line the applicant wins their case. It is my understanding and experience that Tribunals would back date the award back to the actual date of the determination and not back date it to week 13 so this client would have no chance of recieving the WRAC from week 13 up until week 21! This cannot be right.

Tom H
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Reg 30 doesn’t deem someone to have LCWRA; it deems someone to have LCW.  Reg 35 is the deeming provision for LCWRA.  And that doesn’t deem someone to have LCWRA just because the assessment phase has ended.  Your argument is based on someone being deemed NOT to have LCWRA because an determination under Reg 34 or 35 has not be made.

If you win your tribunal your component is backdated to wk14.

J.Mckendrick
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My arguement (as agreed by two different First Tier Tribunal Judges) is prcisely the fact that the applicant does not have LCFWRA - we do not want to argue that at this point - the applicant is treated as having LCFW only which is enough to answer 4(5)(b).

Tom H
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J.Mckendrick - 02 August 2012 03:56 PM

My arguement… is prcisely the fact that the applicant does not have LCFWRA… the applicant is treated as having LCFW only which is enough to answer 4(5)(b).

Yes I know it is JM.  I mentioned that in my post.

Tom H
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Tony Bowman - 03 August 2012 09:56 AM

...But you disputed the interpretation Tom:..

Oh please!  Read the post again.

I’ll give you a clue: if I say “JM says the colour’s white but I think it may be red” and JM comes on and says “but I said the colour’s white”, I come on and say “I know that’s what you said, I said that’s what you said”.

I’ve read my summary of the argument again and I’m happy with it. I’m not completely disagreeing with it.

J.Mckendrick
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Thank you Tony for your last post. Your comment about the DWP speeding up the medical assessments is very important both for the DWP, the tax payer and the client whatever the outcome. If it is absolutley clear that certain ESA claimants are perfectly fit for work then their ESA should stop. Likewise those clients who need the WRAC should recieve it asap ie at week 13. NB refusing someone’s ESA can make certain clients financially better off eg I had a client who was in reciept of low rate care of DLA - having failed an ATOS medical they claimed JSA and the disability premium was greater than the WRAC!

J.Mckendrick
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Fao Tony - re your post dated 3/8/12 at 4.02pm, I think the following extract from CE/52/2011 at paragraph 15 may help the arguement…

“If someone in the circumstances of the claimant here cannot be said to have limited capability for work-related activity because there has not yet been an assessment, so as not to fall within section 4(4)(b), then the person falls within section 4(5)(b). The person does not have limited capability for work-related activity because it has not yet been determined that the person does have such limited capability.”

Tom H
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J.Mckendrick - 04 August 2012 01:50 PM

Fao Tony - re your post dated 3/8/12 at 4.02pm

4.02pm?

JM, of course that judgment makes a difference (“may help” is an understatement).  Your post is actually FAO me more than anyone.  And that’s good.  It’s good that you’ve now addressed the section 4(5)(b) point by finding clear authority in the form of CE/52/2011. 

I haven’t seen your submission so I cannot say whether it addressed the section 4(5)(b) point before now.  But I have to say it appeared that you hadn’t directly done so and that’s what gave me doubts.  And I’ll be honest your responses to my post didn’t exactly give me confidence.

You now have addressed it.  And credit to you for that.  And for me CE/52/2011 now explains why the SOS hasn’t pursued an appeal against your argument.  But the fact it took a UT judgment to decide the point shows that my objection was not unreasonable.

There’s still the issue of Reg 4 but that was less of a concern to me.  I still think there’s a risk of the UT finding that it is absurd that the assessment phase should end because a person hasn’t been assessed.  The initial objections to your interpretation of Reg 4 were to the effect that “having been assessed” simply referred to the assessment phase having begun.  However, if that is what the draftsman meant why didn’t he just say that.  As I said in an earlier post in this thread, I think “having been assessed” refers to an assessment having been completed, which is what your argument says.

So good luck and well done.  I referred in my recent post to my having queried your argument in a separate thread.  In that thread (I cannot find it) I said your argument was very clever.  Now you’ve found CE/52/2011, I’d repeat that.

[ Edited: 4 Aug 2012 at 11:56 pm by Tom H ]