Employment & Support Allowance - Payment of Work Related Activity Component

Hello
can I have a copy of your submission, and a scan of the statement of reason which made the DWP back down? You may need to ‘anonymise’ it, but this would be so helpful for us: it’s psychological, but it would have authority in the eyes of other tribunals.
Thank you
Josephina
giuseppina99
@ yahoo.co.uk

I would appreciate it if you have time to offer some comments on a case I have that is similar to yours.  The facts in my case are:

My client is a 40 year old lady who suffered from supraventricular tachycardia.
9/6/11 claimed ESA
15/8/11 completed EAS50
20/12 11 had successful operation to cure svt with a recovery time of 7 days
30/12/11 ATOS exam found her fit for work
18/1/12 DWP supersession
26/1/12 appeal
16/4/12 reconsideration but no change
Throughout client was paid the initial phase amount of ESA only.

At first I thought that I could use your reasoning to say that the assessment phase ended on 8/9/11.  However I now think that Reg 6 will extend the assessment period to whenever a Tribunal determines the appeal.  The backdating pledge by DWP only applies if the main phase benefit entitlement is established.  As it has not been established then the backdating pledge does not apply.

Can you think of any way in which I could bring your reasoning into play?  My client doe not dispute the outcome of the ATOS examination, only the fact that she was not paid the main phase amount.

Thanks
Martin

Your client’s assessment phase in this example stops 13 weeks after the date of claim (9/6/11) so therefore 8/9/11. In your client’s particular case the WRAC should have been paid from week 13 up until the actual date when the DWP Decision Maker deems/finds your client fit for work and not the date of the ATOS medical. Had your client won at Tribunal then the WRAC would have been paid from the date of the Tribunal decision back to the determination date. Again your example goes to prove that the WRAC should be paid after week 13 up until a decision is made that finds the client fit for work if this being the case. As you can see in this case after many weeks the client’s health improves and then attends an ATOS medical and is then found fit for work (after the improvement in health). Therefore the client will never recieve the WRAC even after week 13 when the client was or could have been completely incapacitated at a time when the client needed the extra income. Again in your case I believe it’s too late to use my arguement as the decision date was probably back in January 2012.

I’m coming a little late to this discussion but I’ve read through the thread and like possiblities the argument opens up.

For those who have used it, has it been necessary to show that a determination was made (presumably during the 13 week period) that the person could not be treated as having LCW under the regs listed in Reg 4(2)(b). Or have tribunals been happy to proceed on the basis that if the person has not been treated as having LCW under one of those provisions at the end of the 13 week, then it is assumed there has been a determination that the person does not come within one of them?

It just seems to me that an actual determination that the claimant cannot be treated as having LCW is necessary in order for Reg 4(2)(b) not to apply. If the DWP have still not made an actual determination at the end of the 13 week period that the person can not be treated as having LCW then it seems to me that Reg 4(2)(b) would apply. That’s because it has not yet been determined whether the claimant has limited capability for work as a result of being treated as having limited capability for work. Are tribunals satisfied to proceed on the basis that it is assumed such a determination has been made or do the DWP put evidence/statement confirming that they have determined the claimant cannot be treated as having LCW?

m1000c - 29 August 2012 01:56 PM

I would appreciate it if you have time to offer some comments on a case I have that is similar to yours.  The facts in my case are:

My client is a 40 year old lady who suffered from supraventricular tachycardia.
9/6/11 claimed ESA
15/8/11 completed EAS50
20/12 11 had successful operation to cure svt with a recovery time of 7 days
30/12/11 ATOS exam found her fit for work
18/1/12 DWP supersession
26/1/12 appeal
16/4/12 reconsideration but no change
Throughout client was paid the initial phase amount of ESA only.

At first I thought that I could use your reasoning to say that the assessment phase ended on 8/9/11.  However I now think that Reg 6 will extend the assessment period to whenever a Tribunal determines the appeal.  The backdating pledge by DWP only applies if the main phase benefit entitlement is established.  As it has not been established then the backdating pledge does not apply.

Can you think of any way in which I could bring your reasoning into play?  My client doe not dispute the outcome of the ATOS examination, only the fact that she was not paid the main phase amount.

Thanks
Martin

Thanks for your prompt reply.  It seems that Reg 6 is irrelevant given that you think your argument will not run in my case, which is a shame.

Please see my post at 3.18pm - Unfortuneatly my arguement cannot now help your client as you are out of time to appeal the non payment of the WRAC after week 13.

JM, I’m not sure I agree with your reading of Reg 4 here.

All Reg 4 does is prevent the assessment phase ending until a LCW determination is made (and let’s just assume that your argument about it ending at wk13 is not correct).  Once the determination is made its effect is always retrospective, ie a person doesn’t just have LCW from say wk 26 when the DM eventually got round to making the determination, but he always had LCW from the beginning of his claim.  Equally, someone determined not to have LCW did not have it from the outset.  It just took 26 weeks for that to be established.

Reg 4 reads:

“4(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–...”

Once a determination is made its result retrospectively applies at the end of week wk13 for the purposes of Reg4.  That way, those eventually determined not to have LCW cannot expect to be paid arrears and those who are eventually found to have LCW can expect to be paid arrears from wk14.  Isn’t that the way the DWP operate at present?  That surely must be the correct interpretation of the law.

Please see my initial post dated 16/3/12 at 2.18pm - the assessment phase stops after week 13 if the ATOS medical has not been completed within the 13 weeks. The assessment phase continues if the ATOS medical has been carried out within the 13 weeks then awaiting determination.

J.Mckendrick - 29 August 2012 03:18 PM

... Had your client won at Tribunal then the WRAC would have been paid from the date of the Tribunal decision back to the determination date…

JM, my last post was directed at that single statement of yours really.  I should have perhaps made that clearer. 

Your argument about when the assessment phase SHOULD end is pretty sound as I’ve stated previously.  I’m not going to go back and read it (the posts are numbered down the right hand side by the way.  It’s a bit easier to quote the post number than the date and time). 

Martin was asking about the chances of getting a component backdated.  His chronology was this (I’ve taken the liberty of adding the point at which the period of 13 weeks ends based on entitlement to ESA commencing on 12/6, ie 3 waiting days not classed as days of entitlement (Reg 144(1)), so counting 91 days from and incl 12/6):

“9/6/11 claimed ESA
15/8/11 completed EAS50
10/9/11 expiry of 13 weeks
11/9/11 start of week 14
20/12 11 had successful operation to cure svt with a recovery time of 7 days
30/12/11 ATOS exam found her fit for work
18/1/12 DWP supersession
26/1/12 appeal
16/4/12 reconsideration but no change
Throughout client was paid the initial phase amount of ESA only”

Martin’s client can have arrears paid to week 14 if he wins his tribunal rather than to the date of determination.  To 11/9/11 rather than to 18/1/12. Much bigger arrears then.  The tribunal’s decision is retrospective. The claimant always had LCW from day1.  That means it was determined at the end of week 13 that he had LCW.  So Reg 4(2) is no longer triggered.  The assessment phase starts and ends under Reg 4(1). 

Equally, if the tribunal disallows the appeal then the person always did not have LCW from day1, nor at the end of wk13.  He was able to be treated as having LCW under Reg 30 whilst waiting for the LCW determination and hence no overpayment of the ESA he received waiting for the determination.

If this is straining the language of Reg 4 too far then the LCW determination for Martin’s client would take effect from wk14 by virtue of Reg 7(38)(a) Decision and Appeals Regs in any event if his appeal is successful.

JM, none of the above contradicts or detracts from your argument about when the assessment phase SHOULD end.  As I’ve said it’s a good argument.  It obviously comes into its own in cases like Martin’s where his client may not win his tribunal only because at the date of the decision under appeal his condition improved.  I agree it’s unfair because in that situation, the person is denied arrears of the WRAG from wk14 onwards.  Your argument puts right that wrong.  Mind you, I’ve had clients where it’s worked the other way, ie they’ve not had great merits but fortunately for them a few weeks before the medical they deteriorate.

There is a legal argument which might help Martin’s client should he lose his tribunal.  It’s simply that on 18/1/12, it was legally open to the DM, despite finding the claimant did not have LCW, to award ESA from 11/9/11 to 17/1/12 based on your argument.  The tribunal can make any decision that was legally open to the DM so it could equally award arrears for the same period despite dismissing the appeal.  If the tribunal refuses, its decision would be appealable and this is perhaps the way to get your argument before the UT.

Finally, minor point but I don’t think Reg 4(2)(a)’s reference to “assessed” is to the LCW assessment that ATOS carries out.  ATOS has to produce medical evidence, eg clinical findings, observations, not make decisions on legal matters such as the descriptors.  The fact it does so is legally dubious.  In any event, the DM carries out the proper LCW assessment by, as we know, rubber stamping ATOS’ LCW assessment/medical.

Still it’s a minor point as far as your argument goes.  After all, if a claimant hasn’t been to ATOS by wk13 it normally means he won’t have been “assessed” by the DM either.

Again it’s my belief that the Decision Maker makes the DECISION taking into account the ASSESSMENT carried out by ATOS…

4(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.

The DWP are in reciept of the record of proceedings in this case so upon return to work I will find out if they are hoping to appeal the previous decisions.

For those who are interested I have just attended a third Tribunal in front of another different Judge (and town ie Kings Lynn) who again agrees with the arguement that the WRAC must be paid after week 13 if no ATOS medical has taken place etc. JM

JM : why didn’t it get sent to the UT the 3rd time around?

Not to sure what it states in previous posts or how interpreted however I can now confirm that the DWP are appealing all 3 succesful First Tier Tribunal decisions and I will update those who are interested with any developments in due course.

Have you a copy of the SSWP’s application for permission to appeal?  Any chance of putting it on here suitably anonymised?  Or just a summary of its main objections to your argument.  I bet these appeals are known collectively in the Department as the “Stop Mckendrick” cases.

I have recieved a copy of the grounds of appeal purtaining to one of the appeals which are as follows…

i) Section 12(8)(b) of the Social Security Act 1998 states that in deciding an appeal the First Tier Tribunal shall not take into acount any circumstances not obtaining at the time the decision appealed against was made - in that the fact the claimant had gone thirteen weeks without being medically assessed was not a circumstance obtaining at the time etc.

ii) It is not accepted that Reg 4(1) ESA Regs 2008 applies where the determination of limited capability for work has not ben made within a 13 week period.

Very interesting in the statement of reasons in one of the other identical cases the Judge states “the Dept makes back dated payments of the WRAC to claimants who eventually are assessed and recieve a determination but there apears to be no authority for this way of proceeding in the regulations!