Employment & Support Allowance - Payment of Work Related Activity Component

There is authority for this- a finding after week 14 that a claimant has LCW following receipt of a medical report, leads to supersession under reg 6(2)(r) SS&CS; (D&A) Regs 1999 which by reg 7(38) is effective from week 14.

This extract is taken from the DWP site…

ESA Where ESA is not in payment because the claimant failed to attend for medical examination but susbequently does so
[SSCA (D&A) Regs 1999 6(2)(r)]
Where a claimant is treated as not having limited capability frow rok because he failed to attend a medical examination, that decision can be superseded where he subsequetnly attends and found to have limited capability. The effective date will be either the beginning of the 14th week of the claim if it is the first determination as to capability or the date the claimant applies if later.

I believe this only applies as stated where the applicant FAILS to attend a medical examination and therefore this section does not apply to the cases in question - my clients did not fail to attend an examination because they were never offered an appt for such an examination within the 13 weeks - this is exactlty what the arguement is!

JM, I pointed out Reg 7(38) as well at post 101 above. 

I’m not sure which part of the DWP site you’re referring to but in any event the Regulations override any DWP guidance, factsheet etc.

The meaning of regs 6(2)(r) and 7(38) is clear in my view and supports, as Martin states,  the tribunal’s view.  However, the fact the appellant might not lose out financially if he wins his tribunal is not really the point.  If you are right about Reg4’s interpretation then the appellant shouldn’t have to wait for arrears of the applicable component.  And, of course, if the appellant loses at tribunal he wouldn’t, under the current interpretation of the law, get arrears at all.

I’m interested in the first part of the SSWP’s submission above.  So is its position that the decision maker who terminates ESA following an unsuccessful medical is only looking at the entitlement situation at the date of his decision and is prevented from looking at entitlement to the WRAG at week 13?  If so, I think that’s wrong.  Imagine the medical takes place at week 30 and a DM subsequently determines at week 32 that the person does not have LCW.  However, just before making his decision he realises that the claimant should have been paid the WRAG from week 14 on the grounds that your argument about Reg 4 is actually correct.  “Ahh, he says, if only I had the legal power to award arrears of the WRAG between week 14 and week 32.”

He could supersede at week 32 and make that supersession effective from week 14.  The basis for supersession would be Reg 6(2)(a)(i) Decisions and Appeals Regs, ie change of circumstances, and the ground for its having retrospective effect, ie from wk14, would arguably be Reg 7(2)(bb)(i) D&A Regs on the basis that the DM cannot rely on his own wrong, ie in failing to supersede on his own initiative at week 14 when Reg4 ESA required him to do so, to deny the person their proper entitlement.  That’s important because if the DM who decides the WCA has the legal power to supersede with retrospective effect, irrespective of the fact that at the same time he is still failing the person under the WCA from week 32 onwards, it means the tribunal has the same power standing as it does in the DM’s shoes.  Consequently, even if the tribunal disallows the appeal against the WCA, it could still award the WRAG from week 14-32. 

The UT should, therefore, dismiss that particular ground of the SSWP’s application.

JM - sorry , I hadn’t realised that you meant that you won 3 first tier tribunals, for 3 different clients. I had thought that you had had 3 FTT hearings for the same client.

I’m interested in the point made in the SoS’s grounds for appeal, about circumstances obtain at the time of the decision under appeal.

Which decision was under appeal in your cases?, was it the intial one awarding ESA, or a later one, such as the one made after the medical

thanks

My very initial appeal to the DWP was that I argued (now wrongly) that my client was entitled to the WRAC immediately upon claiming ESA from the outset - this is what was on the initial GL24. Prior to the DWP sending me their written submission in answer to this they did in fact telephone me to confirm what the actual appeal concerned. It is then I altered the appeal to requesting the WRAC after week 13 etc. After this the DWP sent me their initial written submission (including reference to our telephone conversation) stating that they disagreed with the assertion that the WRAC is payable after wek 13. I believe that the DWP Appeals Team are now attempting to argue that the only question for the First Tier Tribunal to answer was the arguement as initialy written on the GL24 ie WRAC from the outset. It is my belief the DWP were fully aware of my ammended arguement as they commented on it in their submission. They also could have had a presenting oficer at FTT if they were so concerned at the time!

I think that Tomr is right that the assessment referred to in reg 4 is not the ATOS medical but the process of considering the evidence which leads to the determination of whether someone has LCW & LCWRA or not. Reg 2 points to reg 19(2) for defining assessment. Reg 19 is headed “Determination of limited capability for work” and seems to be concerned with how you get to that determination. Para 2 goes

“(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. “
Nothing in there makes me think it is about the medical rather than the process of weighing up the evidence in order to make a determination. Evidence which, as David says, may or may not include an ESA85 (reg 21)
I’d like to be wrong on this so I hope someone can tell me where I have gone wrong.

“(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 (the descriptors).......” or is incapable by reason of such disease or bodily or mental disablement of performing those activities. “

Nothing in there makes me think it is about the medical…..

I believe the ‘assessment’ which is all about whether someone can carry out or not carry out the activities in Schedule 2 (the descriptors) is indeed the ATOS medical and cannot be anything else.

Secondly if you are correct then the DWP can indeed sit back, take their time and extend the assessment phase to whenever they like until and only until they sort out a decision and therefore REG 4(1) would and could never be engaged and is not worth the paper it is written on - well that’s my line of thinking.

Removed post.  Will re-post.

JM,

Whilst the DM carries out the LCW assessment, I think the ATOS medical is also “in accordance with a limited capability for work assessment” for the purposes of Reg 4 (after all, the HCP selects from the same set of descriptors as the DM). 

In fact, if Reg4’s reference to “limited capability for work assessment” was to anything but the Atos report it would make the reg itself meaningless. 

As we know, in the vast majority of cases the DM relies on the Atos medical report as the basis of his own LCW assessment and then immediately follows this up by making the LCW determination.  At best, there’d usually be a few minutes’ delay between the completion of the DM’s LCW assessment and the making of his determination. 

Because Reg 4 makes provision for the assessment phase to continue during the delay between the completion of a LCW assessment and the making of the DM’s LCW determination, it would be absurd if the LCW assessment it had in mind was the DM’s version as that would effectively be providing for the assessment phase to continue a couple of minutes longer.  So I agree with you that Reg 4 must be referring to Atos’ LCW assessment as there is likely to be at least some delay between Atos posting it and it arriving in the DM’s in-tray.

There is still, strictly speaking, only one LCW assessment under the law, which is the DM’s version.  But Reg 4 only asks for an assessment “in accordance with a LCW assessment” which the ATOS medical undoubtedly satisfies.

The DWP will obviously argue that Reg 4 should be interpreted purposively in order to avoid the absurdity of the assessment phase ending precisely because the person has not been assessed by the end of week 13.  However, it is an established principle of statutory interpretation that no amount of absurdity, inconvenience or anomalies can prevent a court giving a provision its ordinary meaning PROVIDED the provision is not ambiguous.  The recent standing and sitting UT decision was able to intervene, for example, because it was felt that Activity 2 was ambiguous.  I don’t think Reg 4 is ambiguous.  The draftsman has chosen the past perfective aspect of the verb (“having been”) which suggests that whatever action was being referred to, ie the assessment, has been completed.  If it’s not completed then sub para (2)(a) of Reg 4 doesn’t apply, and because the person is being treated under Reg 30 then sub para (2)(b) of Reg 4 doesn’t apply either.  Which means the assessment phase ends in accordance with para (1) of Reg 4.  Very simple argument but no less clever for it.

I think you’re having problems with the date of decision under appeal.  I recall you mentioning in a separate thread that you had initially asked, incorrectly, for the WRAG to be paid from a date even earlier than week 14 and you appealed that refusal.  But you then realised that the WRAG should have applied only from week 14.  In that event I don’t think section 12(8)(b) SSA98 is a problem for you but you’d need to provide more info.  There’d be no need to argue that you’d also implicitly appealed against the refusal to award from week 14.  Your first appeal would be enough if I’ve got it right.  Like I say more info would be needed.

I think sub paras (a) and (b) just describe the ways in which a determination ends the assessment phase: (a) being by through LCW assessment carried out by the DM and (b) being through most of the ‘treated as’ provisions. I think the reason for going to the trouble of setting out the ways of getting to a determination is for what it misses out: reg 30. So it could equally have been written as is but with subparas a & b replaced by “other than as a result of the claimant being treated as having limited capability for work in accordance with regulation 30”

Damian - 20 November 2012 08:42 AM

...So it could equally have been written as is but with subparas a & b replaced by “other than as a result of the claimant being treated as having limited capability for work in accordance with regulation 30”

Yes, but that’s exactly the point Damian: it wasn’t drafted that way.  Where the provision is unambiguous judges are reluctant to interfere.

The interpretation that JM gives Reg 4 is arguably not what the draftsman intended.

Consider, for example, Section 5 WRA and Reg 146 ESA Regs which provide for certain claimants including those treated as having LCW under Reg 30 to be paid IRESA based upon the inclusion of the WRAG from as early as week 14 regardless of the fact that the claimant has not been assessed under the WCA at that point and regardless of the fact that they might eventually be found not to have LCW.  I think the justification for Reg 146 is that it only authorises relatively small amounts of IRESA to be paid (ie the difference between an applicable amount including a component minus the income that would otherwise have been too high to justify ESA entitlement but for the inclusion of Wrag or support component)  However, its importance for present purposes is that in order to include the WRAG from week 14 Reg 146(4)(b) has to expressly dis-apply the normal requirement that the assessment phase ends before an award of the component applies.  Now, I suspect that that implicitly confirms that the legislative intention was for the assessment phase to continue for those Reg 30 claimants whose income was low enough to allow them to be paid normally during the assessment phase and who had not yet been assessed by Atos by the end of week 13.

However, as long as Reg 4 is not ambiguous it doesn’t matter that it fails to achieve its intended purpose of extending the assessment phase until an LCW determination is made.  I was worried that ambiguity might have been introduced by Reg 4’s reference to the LCW assessment but I think the reference to “in accordance with” as mentioned in my last post clarifies matters to remove any ambiguity.

Dear Tom re post 118 - Yes I incorrectly asked for the WRAC to be paid to the client right from the outset of his claim. Later on I realised that he was entitled to the WRAC from week 14 due to the legal arguements already covered in previous posts. With this in mind the DWP have argued that the FTT had no jurisdiction to make an award of the WRAC after week 14 as the very original appeal made by me was asking for the WRAC from the outset of claim. In support of their appeal they cite Section 12(8) Social Security Act 1998! However Sec 12(8) relates to all the benefits mentioned in Section 12(1) eg those in section 8 or 10, any RELEVANT BENEFIT or those mentioned in a RELEVANT ENACTMENT and those mentioned in schedule 2 & 4 etc. I cannot find any reference to the ESA Regs in all the benefits mentioned in Section 12(1) so am I right in thinking that Sec. 12(8) is inadmissable in their case as the ESA Regs are not covered by the Social Security Act 1998 ie Sec 12(8). Any thoughts would be appreciated. JM

Relevant benefit is defined in s8(3) of the SSA and includes ESA.

nevip - 21 November 2012 03:19 PM

Relevant benefit is defined in s8(3) of the SSA and includes ESA.

Where exactly is ESA mentioned in 8(3)!

About halfway down the page.