Got my ESA Tribunal Date but also have WCA for Universal Credit

Csmk

The DWP definitely can review the claim after the ESA appeal, but it can't be a review just on claiming UC, if they get the support group.

The guidance at M6195 states that there will be no need for an assessment if a LCWRA award has been made this way. In practice, the DWP will still complete the first WCA on claiming UC a lot of the time, but really this shouldn't supersede the award transferred from the appeal. Unless it's a review on a different basis.

All that needs to be done is a complaint to the DWP about this. We've done this many times with success to override the initial WCA on claiming UC after getting a successful ESA. There's a letter from Neil Couling (Director General of UC) on this, but I'm not sure how to upload a pdf to this. PM me if you know!

calcotti

Csmk wrote: »

The DWP definitely can review the claim after the ESA appeal, but it can't be a review just on claiming UC, if they get the support group.

The guidance at M6195 states that there will be no need for an assessment if a LCWRA award has been made this way. In practice, the DWP will still complete the first WCA on claiming UC a lot of the time, but really this shouldn't supersede the award transferred from the appeal. Unless it's a review on a different basis.

All that needs to be done is a complaint to the DWP about this. We've done this many times with success to override the initial WCA on claiming UC after getting a successful ESA. There's a letter from Neil Couling (Director General of UC) on this, but I'm not sure how to upload a pdf to this. PM me if you know!

Although there is no need for a new WCA DWP are allowed to review at any time (after 3 months). If a WCA is carried out and completed it will supersede the previous decision. Are you saying you have had success getting the DWP to effectively cancel the later WCA decision as if it had never happened or that you have been able to get them to revise the later decision to match the earlier one?

If you have an online location for the Neil Couling letter can you post a link to it?

Csmk

Yes, I have had success with this. So let's clarify where I'm coming from here:

The OP has claimed UC after getting a negative decision on their ESA. On the UC claim this will be the first time the work capability assessment is being done. The OP gets a negative decision on this. However say the ESA appeal awards Support Group. This will then mean the LCWRA element will be included on their UC from the first assessment period and this will override the 1st WCA decision on UC. If the client has another WCA review after this, say in three months, then this would supersede the LCWRA decision (though I'd say this is bad practice and could quite easily be disputed on the basis there's a very recent appeal). However, on claiming UC, the WCA decision whilst waiting for the appeal will not supersede the transfer. I think the intention is to get get transfers across whilst the draft regs for managed migration are put into law and to persuade more people to move over to UC in the first place.

I was going to post the link but because I'm a new user is wont let me. Do you have access to rightsnet? It's on a discussion page where the DWP are sending responses following letters regarding this issue from NAWRA.

NeilCr

This one?



https://www.rightsnet.org.uk/?ACT=39&fid=3&aid=1937_hhLKiH9Ifez99HwjkhQD&board_id=1

Csmk

Without being nosey (and understand why you might not want to say) what's your background here when you say I/we have had some success. Are you a benefits adviser for example?

Csmk

I don't think it's that one unfortunately. Can I post this?: https://documentcloud.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3A71bbd152-ff78-43d0-9348-5990f15cc599

Haha no problem, yes I am a benefits caseworker. I joined as when I'm doing some of my research for clients I've come across the forum and thought I might be of some help. Plus I'm a workaholic and cannot stop talking about benefits

calcotti

Possibly the letter at post 37 here https://www.rightsnet.org.uk/forums/viewthread/11307/P30/

What the rightsnet thread shows is how difficult this area is and continues to be 18 months after that letter was written.

I cannot see the logic of your post #34. I would expect the later WCA decision to create a ‘closed period’ for the effect of the tribunal decision in the same way that a later assessment would in respect of PIP tribunal. Still not clear when you say you have had success doing this what this is. As previously asked are you saying you have had success getting the DWP to effectively cancel the later WCA decision as if it had never happened or that you have been able to get them to revise the later decision to match the earlier one?

EDIT- cross post, I see that is indeed the letter you were referring to.

Csmk

Yes it is a nightmare to be honest and quite frankly the DWP need to follow their own guidance and stop doing whatever they feel like in each jobcentre.

Yes it was the letter, it was only to add to the point that the element can be transferred. What I have done is send complaints to the DWP whilst a client is waiting to attend a WCA, this has got it cancelled following a Tribunal per the guidance.

Also what I have done is get the new WCA revised on the basis that there shouldn't have been a WCA as the client is already in the LCWRA group following the appeal and the client should not have been referred for one and quoting all the above regs and guidance. Clients have had LCRWA reinstated following this.

As I've done it by any grounds revision it will effectively replace the WCA decision (effectively cancelling the WCA) and also reaffirms the earlier decision as a continuation under the guidance.

To be honest, all @jasonwatkins will need to do is send a letter to Universal Credit asking them to revise the new WCA decision if his appeal is successful and ask them to backdate it to the first AP and for this to override the WCA decision. There's not much more to it than that. If there's pushback from DWP, to seek advice locally in progressing a complaint/appeal or both.

I think I've swamped the thread enough here which Ithink has missed the point of the OP by getting too technical. PM me for more discussion if you want though, interesting to talk about!

calcotti

That’s much clearer - I think that we are in fact all saying the same thing but the narrative has got a bit confused.

In general, in this situation, seek to get the new WCA cancelled.
If not possible/successful in cancelling he WCA use the tribunal decision to seek revision of the new WCA decision (if beneficial to do so).

Another way of looking at this is that, not withstanding that an appeal had been lodged, at the time UC was claimed the claimant had recently fern found fit for work. DWP could simply have relied on this decision, unless claimant could evidence a change in their health since WCA decision, and placed claimant in full work search group.

jasonwatkins

Thankyou everyone

I'd certainly be quite happy to cancel the WCA on Wednesday but both phonecalls I made last week made it pretty clear to me that that didn't appear to be an option.

Aside from my own situation, it would save my 80 year old mother a near 3 hour journey on public transport to come with me.

Csmk

@calcotti Yes, I think we're all pretty much on the same track with this!

@jasonYes, unfortunately until you get a decision on your appeal you'll still need to complete the UC assessment. As soon as you get a decision on your ESA appeal and this is successful upload a copy of the decision to your journal and request that UC revise your award to include that you have limited capability for work. Send a complaint letter too if you haven't got a decision on the new assessment yet.

Have you asked for a home visit? This request can be granted if you struggle getting to places by yourself and you can get a doctor's note or the equivalent recommending to that effect. You could even argue that the assessment providers are discriminating on disability grounds for not providing reasonable adjustments under the Equality Act 2010 if they refuse to give you a home visit and you struggle getting out because of your health.