No WCA carried out for over 365 days!

Hi,

I have a client who applied for CB-ESa in August 2012. His claim was “overlooked” and he never had a work capability assessment. He has been on CB-ESA for 365 days and the DWP have stopped his CB payment - despite not being assessed for SG or WRA.

Are the DWP right to stop his payment after 365 days despite not being assessed? Or should it continue? I have a hunch they are right to do so but struggling to find a reference point.

Thanks

I think they probably are, however they should still assess to consider group placement and pay any arrears due.

I’m not sure that they are right.

The relevant law (section 1A(5) WRA 2007) provides this:

“(5)In calculating for the purposes of [the time limit] the length of the period for which a person is entitled to an employment and support allowance, the following are not to be counted–

(a) days in which the person is a member of the support group,

(b) days not falling within paragraph (a) in respect of which the person is entitled to the support component referred to in section 2(1)(b), and
 
(c)days in the assessment phase, where the days immediately following that phase fall within paragraph (a) or (b).”

So when they come to supersede his assessment rate CESA at day 365, how do they know that he isn’t going to subsequently go into the support group?  If that happened, main phase ESA would retrospectively start at wk14 along with the support component. That would mean all the days from day 1 of his claim to the end of wk13 would fall into (c) above and all the days from the start of wk14 to the date of his eventual WCA would fall under (b) above.

Obviously, at day 365, we don’t know if days 366 onwards are going to fall within (b) and, eventually, (a) above.  The burden is on the SSWP to show that there are grounds to end the award.  I don’t think there are grounds because we just don’t know.  Whether payment of ESA could be suspended (say, under Reg 16(3)(a)(i) D&A) from day 366 until the outcome of the WCA is known is a moot point.  I think the doctrine that a party cannot rely on its own wrong might be relevant if benefit were suspended, given that the “issue” responsible for the suspension of benefit would arise only as a result of the DWP’s own incompetence, ie in not assessing the claimant under the WCA earlier.

Had this been a migration case and the claimant was receiving CESA pending appeal, there would not appear to be a legal basis for ending CESA even if the appeal takes more than 365 days to get to tribunal.

On a similar theme, I think one of my clients may hold the record for the longest WCA delay. He’s only very recently failed the WCA and the bundle has just turned up. According to that (and a subsequent call to DWP to check) he appears to have been in the assessment phase since 2009…