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Can a client be deemed to be in WRAG or SG without a WCA being completed?
This question has probably been asked before so apologies for any repetition…......
Client situation - ESA claim closed May 2013 (date of claim Sept 2012) due to inaccurate information from Student Finance), new claim submitted and appeal made…..
Finally correct information obtained from SF and incapacity now accepted from Sept 2012 but as no WCA has ever been conducted no allocation to either WRAG or SG. Client is wheelchair user and extremely vulnerable due to complex health issues.
Is there any way of getting DWP to deem allocation to WRAG/SG without an assessment from those lovely people at ATOS?
Many thanks for all the help :)
In a nutshell, yes…
Drown them in medical evidence and phone calls suggesting they read it before sending it to ATOS and, sometimes, they will make a decision without a referral. It’s an idea to prime the decision maker you are sending it to.
It needs to be pretty explicit about the extent of the disability.
DManville is right. I’ve heard it referred to as “going through on scrutiny” before. The DWP seems to leave it up to the assessment provider (Atos, Capita etc.) to make a recommendation, which is rubber-stamped by the Department.
Anecdotally, I had someone on ESA replaced in the Support Group after being refused benefit earlier this year. The circumstances were that he was found fit for work after failing to attend a medical and JCP/Atos had failed to process his new claim (submitted July, decision November), so they did so without scheduling a medical. Quite why they insisted on one in April but not now I know don’t know - I assume benefit was awarded as either an apology or because there are no available assessments and the claimant has no form of income whatsoever, including discretionary support from the LA.
Medical evidence together with a covering letter stating the case for awarding whichever component is appropriate seems to work. The trick is to make it easy for the DM to make a favourable decision (and cover his/her back if s/he’s audited).
Yes. I have a client who this happened to back in August of this year.
We bombarded them with evidence and then contacted ATOS, who then caved in and DWP put him in support group, much to my surprise.
It sounds like they’ve revised the original decision which awarded ESA from Sept 2012. It’s unclear from your post when that original decision was made. It was obviously made before May 2013, ie the date the award was terminated. Consequently, the question of when the WRAG/SG is payable to a student receiving ir-ESA is determined by the old version of Reg 4 ESA Regs. From 29/10/13 the new version of Reg 4 makes it clear that the assessment phase ends at the end of 13 weeks for a student provided it has been decided at that point that the student is to be treated as having LCW under Reg 33(2). Reg4’s very important because, subject to a very few exceptions, a component becomes payable only when the assessment phase has ended.
Pre 29/10/13, the interpretation of Reg 4 was less clear but UT Judge Bano has sensibly confirmed in CE/3732/2012 that as far as students and all others treated as having LCW (except, and wrongly in my view, those treated under Reg 30) the assessment phase also ended after 13 weeks:
“For all other claimants, the assessment period lasts until a limited capability for work determination has been made, either because they come within regulation 4(2)(a) by virtue of a limited capability for work assessment having taken place as the basis of the determination, or because they come within one of the provisions specified in regulation 4(2)(b) and are therefore exempt from assessment. In other words, subject to exceptions in cases involving appeals, the assessment phase lasts until the end of the three month period, or until the determination that a claimant has (or is to be treated as having) limited capability for work, whichever is the later.” (para 9) (my emphasis).
Applying that to the facts of your case, the student should have been paid, at very least, the WRAC from Dec 2012, ie 13 weeks after the assessment phase commenced in Sept 2012, and regardless of the fact that a LCWRA (ie, support group) determination had not been made by then. The recent revision decision mentioned above which re-awards your client ESA from Sept 2012 will extend the time for appealing. I would, therefore, request a mandatory reconsideration of that revision decision and appeal any subsequent refusal to revise further. I think that may be necessary because I think the reason that no component is being paid in your case is not because the DM thinks that ATOS must carry out an assessment first, but rather that she/he thinks that the LCWRA assessment is not applicable to students at all. Refer the DM to CE/3732/2012 if that’s the case.
The Reg 30 issue above addressed in CE/3732/2012 was, incidentally, the subject of Rightsnet’s most viewed thread.
Finally, post 29/10/13, whilst the position remains that a DM may waive the need for a claimant to complete a ESA50 (which as we know requests info relevant to both LCW and LCWRA), his/her discretion to so waive has been narrowed slightly by Reg 13(9) and (18) of 2013/2536 which makes it a condition of the exercise of that discretion that such info “must” not be required to decide LCW/LCWRA. In other words, I think it will have to be clear from the medical evidence submitted by the client how it is relevant, in the case of the support group, to a particular Sch 3 descriptor. The DM appears to have a much broader discretion to decide LCW/LCWRA based on substantial risk to health, although caselaw is beginning to get tougher on the DM re evidencing refusals to accept substantial risk. The ESA50 in the present case was waived for LCW purposes by virtue of Reg 21(3), ie, the claimant was a student treated as having LCW, but it may still have been necessary for LCWRA purposes where a Sch3 descriptor was in issue.
And, of course, it remains the case, as others say, that there is an unrestricted discretion whether or not to send the client for a medical (“may be called..to attend for a medical examination).
[ Edited: 12 Dec 2013 at 02:47 pm by Tom H ]As a fairly new WRO, who is still very much learning, I had never seen this before, until it happened to my daughter. She has an Acquired Brain Injury thanks to a car accident, and has had to take a year out of Uni.
I did complete all the forms for her, and gave the name of every specialist and support worker she is seeing, plus copies of her hospital discharge letters-didn’t even call for her for a WCA, but put her in the SG.
While I am happy for her, that she didn’t have to face ATOS, for my experience, I would have loved to know what ACTUALLY happens first hand at one of those things.
Still-there is a PIP claim in, we may still get one. I should really be careful what I wish for!!!
Not sure if this should be here or in the substantive thread on ESA for fulltime students but I took this up with DWP colleagues in the Operational Stakeholder Forum. My understanding was that the work-related component should automatically be paid from Week 14 without the requirement of an ATOS assessment (and providing they are in receipt of DLA)
I’ve come across parents of learning disabled students who are languishing on the under-25 basic rate for months until their WCA has been carried out.
I’ve subsequently had it confirmed:
“Thanks for your enquiry. What should happen when a claimant is treated as having limited capability for work under ESA Regulation 33 is that the work-related activity component should be awarded from the 92nd day of the claim. In the meantime we should make a referral to Atos to see whether there is evidence that the claimant should be placed in the Support Group. Once those enquiries are complete the Decision Maker should then determine whether the support component is payable”.
Yesterday the following reminder was sent out to all ESA processing centres:
“This alert is to remind staff that where a claimant can be treated as having LCW and a LCWRA outcome is not known by the 92nd day of the claim, the WRAG rate should be paid from the 92nd day pending the LCWRA outcome. ESA guidance has been amended to clarify this.”
I’ve asked for a reference for the guidance and will post as soon as I get it.
I’ve now received the following response from ESA Operational staff:
“The guidance that’s been amended is the JCP ESA guidance, which isn’t available externally. I don’t have any equivalent to that in the DMG, which is available externally. All I can do is provide an external link to the bit of the DMG which refers to ESA Reg 33(2). See DMG 42075–6.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252043/dmg-vol8-ch42.pdf
Guidance on the assessment phase and components is at DMG Chapter 44, but there is nothing in there that is a direct equivalent to the amended JCP ESA guidance.
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252045/dmg-vol8-ch44.pdf
Can I just point out that your enquirer is looking at the wrong regs? Reg 33 of the ESA Regs 2008 does not deal with information requirements for LCWRA – it’s reg 36(2). Reg 33 of the ESA Regs 2013 is about information requirements, but those regs currently only apply to people entitled to ESA(C) who are already entitled to UC. As the issue is awards of ESA(IR) to disabled students under the 2008 Regs, it’s important to make sure that we’re using the right regs. There is no equivalent to ESA Reg 33(2) in the new ESA Regs.”
From reports I’m getting from colleagues it does appear that JCP staff have been alerted to this and are likely to have to review a large number of outstanding ESA claims
“The guidance that’s been amended is the JCP ESA guidance, which isn’t available externally. I don’t have any equivalent to that in the DMG, which is available externally.
Ah, back to the S Manual. Time for a FOI request?
Thank you all for the very helpful advice given - sadly the benefit centre are still insisting a WCA has to be attended before WRAG allocation despite me quoting the guidance given…........
I am about to spontaneously combust…..
You need to foster good relations with your ESA decision making team; a direct line to the DM is a useful thing to have.
Without that, ATOS should have the evidence you sent in to JCP. Ring the assessment centre admin hub (not the 0800 number, the local med serv’s office that deals with referrals and the like, for me it’s Birmingham) and ask them to consider what you’ve submitted with an eye to avoiding the need for an assessment.
If your client’s vulnerability arises from her disability then explain as much and mention that it would be a reasonable adjustment to consider the evidence submitted before considering referral.
Usually works for me
“The guidance that’s been amended is the JCP ESA guidance, which isn’t available externally. I don’t have any equivalent to that in the DMG, which is available externally.
Ah, back to the S Manual. Time for a FOI request?
Hi Gareth
Is it called “the S Manual?” My whatdotehyknow account’s live and running; it’ll only take two minutes…
I’m definitely interested in the JCP ESA guidance. I have two clients just this week who have/are signing off ESA (one after a year) and neither have had ESA50’s or medicals (although an ESA50 just dropped through one letterbox).
Of course any medical now will find them fit for work.
I’m evidence gathering to appeal the cancellation decisions - Reg 19 is the one I will be arguing to say it doesn’t matter if a medical has not been heard because that is just one aspect of an ‘assessment’ i.e. a process that can have or not have a medical.
A while ago a colleague was Directed to ‘Make a further submission as to the construction of the word assessment in regulation 19 of the ESA Regs’ and responded; “Arguably ‘assessment’(s) meaning in the context of regulation 19, points to the process of weighing up the evidence which may or may not include/require an e.g. ESA 50, miscellaneous medical evidence (regulation 21 (1) (b) (c)) or an medical examination (regulation 23) in order to make a determination whether the claimant has ‘Limited Capability for Work’ (LCW) by a Decision Maker.”